Out-Law Guide 3 min. read
12 Aug 2011, 10:53 am
The International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration(28-page / 1.5MB PDF) were created in 1983 to provide a comprehensive framework of provisions governing how evidence could be presented in arbitration proceedings. Tribunals will often refer to the Rules as the benchmark for the key areas of disclosing evidence, witnesses and experts.
The Rules were revised in 2010 to reflect current practices and challenges, such as dealing with the increasing amount of evidence held electronically. This Guide provides a brief summary of these changes and their practical impact.
Disclosure of evidence
The Rules promote the "efficient and economical" exchange of evidence by creating an adaptable procedure for the parties to follow. This is supported by a new Article 2 which encourages parties to consult with each other at an early stage in the proceedings on the "scope, timing and manner" of the taking of evidence. In this way, parties are given the opportunity to decide how to deal with issues which often cause disruption to arbitration proceedings from the outset.
This disclosure procedure is also designed to restrict the volume of evidence in arbitrations. While the Rules achieve this to an extent, the time involved in this process can be lengthy when the parties have different views as to what constitutes 'material' evidence and serve extensive objections to requests to produce it.
A new Article 3(14) has been inserted into the Rules which will allow the Arbitral Tribunal to schedule the submission of documents and Requests to Produce separately for each issue where the arbitration case has been organised into separate issues - for example jurisdiction, preliminary determinations, liability or damages. This is a welcome addition, as often in the early stages of large arbitrations parties have not considered the issues involved for each individual stage of the case in sufficient depth to provide comprehensive disclosure on every aspect.
Tribunals are increasingly showing a preference towards the Rules, particularly in cases which involve a considerable amount of documentation. Parties are given the freedom to decide the process and timetable they will follow leading up to, and then after, exchanging documents. The Rules only require parties to produce a set of identified documents on which it will rely and submit to the other party a Request to Produce documents that are "relevant to the case and material to its outcome".
Dealing with electronically stored information
Recognising that evidence is often stored electronically, Article 3(a)(ii) of the Rules has been updated so that requests for documents which are kept in an electronic format may "identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner". This will hopefully reduce the scope for disagreement over imprecise requests – which can swallow up a significant amount of time – and prevent so-called fishing expeditions to find incriminating information when carrying out document searches in data management systems. Online review systems provide a more efficient way of reviewing evidence held electronically than reviewing a potentially large volume of hard-copy documents.
However in practical terms this new wording has the potential to increase the number of documents disclosed. For example a Request to Produce may call for the disclosure of the minutes of a meeting at which a key board decision was made. In the past requests such as this may have been objected to because of their elusive nature or because the request was disproportionate to the point being made. However under the new wording the requesting party can now provide specific and relevant search terms for the other party to use which will make it more difficult to refuse the request.
The Rules have also been amended to deal with the cross-examination of witnesses. Witnesses will now only be called to give oral evidence when their appearance has been requested by a party or the tribunal. In addition, expert witnesses are now required to describe the instructions given in their reports and to provide a statement of their independence from the parties, legal advisers and tribunal.
The new Rules apply to all arbitrations in which the parties agree to apply the IBA Rules after 29 May 2010. While some may see the revisions as a subtle shift towards an instrument which is more prescriptive than its predecessor, the change has simply brought them into line with modern practice. At their heart, they remain a practical benchmark for managing evidence in international arbitrations.