Intended to bridge the divide between civil and common law practices for the taking of evidence in international arbitration, the IBA Rules have become almost ubiquitous in their use by tribunals and parties alike. Having found widespread application in supplementing the substantive and procedural laws governing international arbitration proceedings, they have long enjoyed a soft-law status and continue to act as the benchmark for evidentiary procedures of international commercial and treaty-based international arbitrations.

The recent release of the 2020 IBA Rules on the Taking of Evidence (the ‘2020 Rules’) marks their second revision since being promulgated in 1999. The new provisions purport to codify recent developments in international arbitration particularly in light of the increased need and demand for holding virtual hearings. While acknowledging the challenges precipitated through technology-driven advancements, they also offer notable additions to supplement principal institutional and ad hoc rules to facilitate the evidence-gathering process and optimise its efficiency.

The following will offer a comprehensive overview of the most important revisions.

New Additions:

Scope

• Article 1.2 of the 2020 Rules explicitly aligns the scope of application with paragraph 2 of the Preamble of the 2010 Rules. While previously silent on the partial application of the IBA Rules, the new provisions explicitly provide for their application ‘in whole or in part’.

• In the event of inconsistencies between the General Rules and the IBA Rules, the tribunal is to apply the latter ‘in a manner that it determines best in order to accomplish, to the extent possible, the purposes of [both]’ (revision emphasised).

Cybersecurity and Data Protection (Article 2)

i. Advance Party Consultation (Article 2.2(e))

• The 2020 Rules have added cybersecurity and data protection (including data privacy) as one of the evidentiary issues requiring advance party consultation.

• The provision reinforces the importance of discussing technology-related matters at an early stage of the proceedings for purposes of making the taking of evidence more efficient, cost-effective, secure and where applicable GDPR-compliant.

• The revised Article builds upon existing guidance¹ and is a crucial addition in the context of the COVID-19 crisis, given the sensibility of data and increased risk of cyberattacks.²

Remote Hearings (Article 8)

i. Protocol for Remote Evidentiary Hearings (Article 8.2)

• Given the heightened demand for the use of technology as a direct consequence of the COVID-19 pandemic, the newly introduced Article 8.2 provides an express framework for conducting remote hearings.
• It allows the tribunal to order such hearings in whole or part on its own motion or following the parties’ request.

• The tribunal has a positive duty to consult parties prior to establishing a remote hearing protocol on logistical, procedural and technical matters. In order to ensure the hearing can be conducted ‘efficiently, fairly, and, to the extent possible, without unintended interruptions’, the Protocol may address issues including:
  • The technology to be used;
  • Advance testing of the technology or training in use of the technology;
  • The starting and ending times considering, in particular, the time zones in which participants will be located;
  • How Documents may be placed before a witness or the Arbitral Tribunal;
  • Measures to ensure that witnesses giving oral testimony are not improperly influenced or distracted.

ii. Oral Testimony (Article 8.5)

• The new Rules recognize the authority of tribunals to permit oral direct testimony irrespective of whether a written witness statement or expert report has been submitted in lieu of such testimony.

Admissibility of evidence (Article 9)

i. Illegally Obtained Evidence (Article 9.3)

• Pursuant to the newly inserted Article 9.3, the tribunal is entitled to exclude evidence obtained by illegal means either on its own initiative or at the parties’ specific request.
• Given the lack of uniformity among national laws as to what constitutes evidentiary illegality as well as which circumstances may give rise to it, the 2020 Rules recognize that such a determination may require taking into account issues including:
  • Party involvement in said illegality;
  • Proportionality;
  • Nature of evidence, i.e. materiality or outcome-determinative;
  • whether the evidence has entered the public domain;
  • Severity of the illegality.

• In the absence of consensus on this matter, the new provisions afford the tribunal broad discretionary powers in relation to the admission and evaluation of such evidence.

ii. Confidentiality (Article 9.5)

• The 2020 Rules build upon the distinction made in its preceding version between documents submitted as evidence and those produced in response to the specific request of an opposing party.

• Unlike the former version, which left the issue of confidentiality unaddressed, the scope of protection has been expanded so as to also apply to documents generated in response to document production requests.

Substantive Changes:

Document Production (Article 3)

i. Response to Objections (Article 3.5)

• One of the most significant changes includes the ability of parties to respond to an opposing party’s objection to document production requests. Although parties had already been permitted to raise objections under the 2010 Rules, the new revisions now expressly allow for parties to issue a response ‘if so directed by the Arbitral Tribunal, and within the time so ordered’.

ii. Request to Produce and Party Consultation (Article 3.7)

• The former duty imposed on the tribunal to consult parties when considering production request and objection thereto has been removed. The importance of this change is two-fold:

• It is reflective of common practices, whereby the tribunal rules on the request and objection without further consultation (the necessity for deliberation is made redundant by earlier discussions on the document production process during e.g. case management conference);
• It unequivocally removes the erroneous assumption that any additional consultation of the parties is required.

iii. Translation (Article 3.12(d))

• While the 2010 Rules already differentiated between documents submitted as evidence and those produced in response to a production request, the new provision clarifies that the latter do not form part of the evidentiary record and thus are not required to be translated.

• The burden to provide a translation is therefore placed on the party that relies on documents submitted as evidence.³

Witness and Expert Testimony (Articles 4-6)

i. Witnesses of Fact (Article 4) and Party-Appointed Experts (Article 5)

• The scope for the admission of second-round witness statements or expert reports has been expanded. Rather than merely including submissions on matters not previously presented by another party, the new provisions allow for the inclusion of ‘revised or additional’ witness statements and expert reports if these are based on new ‘developments that could not have been addressed in a previous Witness Statement [respectively “Expert Report”]’.

ii. Tribunal-Appointed Experts (Article 6)

• The 2020 Rules, like the preceding version, stipulate that information requests may be made by experts ‘to the extent relevant to the case and material to its outcome’.

• Seeking to undermine any suggestion as to the authoritative equivalence between tribunal and experts, however, the following phrase has been removed: ‘the authority of a Tribunal-Appointed Expert to request such information or access shall be the same as the authority of the Arbitral Tribunal’.

• The new revisions make clear that the power to resolve any disputes over information or access, including matters of privilege, is to lie with the tribunal.

The 2020 Rules offer welcome guidance and a timely, forward-looking framework to navigate recent challenges arising in the taking of evidence. While expanding the scope of best practices (e.g. document translation, objections to document production requests), the new revisions maintain the necessary flexibility to adapt the evidence taking procedure to the requirements of the respective case as well as the needs and expectations of those party to it.

Nevertheless, the novel additions leave significant gaps, such as with regard to:

• The extent of privilege and legal impediment: Given the diverging national laws on this issue, the Rules, albeit acknowledging the parties’ expectation of privilege, do not impose a definite standard for invoking it.

• The meaning of ‘data contained in electronic form’: While the Rules permit electronically stored information to be identified via ‘specific files, search terms, individual or other means of searching’, they fall short of providing a more detailed account or definition as to what may constitute ‘documents maintained in electronic form’.

• The drawing of adverse inferences: The Rules leave open e.g. what parties ought to address in their request, whether and if so at what point the tribunal is to inform parties of their intention to draw adverse inferences on its own motion or whether parties will be given an opportunity to respond to the anticipated inference.

Notwithstanding the fact that the aforementioned questions remain unresolved, it is commendable that the 2020 Rules have expressly acknowledged the shift from physical in-person hearings to those conducted remotely. Their guidance on this relatively novel practice provides an invaluable starting point for organising hearings using videoconferencing or other communication technology. Yet, perhaps more importantly, their revision has opened the door to the possibility of remote or hybrid hearings becoming an integral fixture of arbitral practice, rather than a provisional phenomenon of the times we are living in.

Footnotes

1. E.g. Draft ICCA-IBA Roadmap to Data Protection in International Arbitration; ICCA-New York City Bar-CPR Protocol on Cybersecurity in International Arbitration.

2. As witnessed during a 2015 arbitration concerning a maritime border dispute between China and the Philippines (PCA Case No. 2013-19), see http://www.pcacases.com/web/sendAttach/1503.

3. It remains to be the case that evidence must be accompanied by a translation if the language of the document is different from that of the arbitration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.