With the release of new Revised 2020 International Bar Association Rules on the Taking of Evidence in International Arbitration (2020 IBA Rules), on 21 January 2020, the Asia Pacific Arbitration Group (APAG), with the support of the IBA Arbitration Committee and the IBA Asia Pacific Regional Forum, concluded a two-part webinar series titled “A practical guide to the 2020 Revision of the IBA Rules on the Taking of Evidence in International Arbitration”. Leading experts in the field of international arbitration were asked to analyze and discuss several revisions of the 2020 IBA Rules as well as make predictions on how they will shape arbitral practice in the future. Part one of the webinar series was discussed in our previous newsletter. The following provides an account of part two, focusing on translation requirements for document production between parties, late document production requests as a ground for their refusal, and privilege and confidentiality-related issues in arbitration.

Translation Requirements of Produced Documents

Possible challenges

The speakers started the webinar by addressing the newly introduced Article 3.12. (d) of the 2020 IBA Rules, which stipulates that “Documents to be produced in response to a Request to Produce need not be translated unless the Parties agree otherwise or Tribunal decides otherwise”.

This revision shifts the burden of translation on the Party relying on and submitting the document into the record and may present the following challenges:

• It opens up a new route for tactical games since a party may “flood” the other party with a huge volume of irrelevant or trivial documents in a foreign language;
• It increases the time and cost burden on the party requesting the document, especially when the parties have substantially unequal bargaining powers;
• It creates contextual translation challenges.

Effect of the language of the arbitration

Speakers also addressed whether the agreement of the parties on the language of the arbitration will affect Article 3.12. (d) since the language of the provision allows parties to depart from the “no translation” rule. The speakers have noted that party stipulation of the language of arbitration applies only with respect to the documents that are created within the arbitration proceedings and therefore cannot backtrack to documents that are initially produced in another language. In other words, the choice of language of the parties has a limited scope and cannot apply to document production between the parties under Article 3.12. (d). Even in such a case, speakers mentioned that compliance with the language of arbitration may be reached if the arbitral tribunal requires the party producing the foreign language document to provide an index of such documents in the language the parties have chosen for arbitration.

Late document production request as a ground for its refusal

Article 3.2. of the 2020 IBA Rules provides for the right of the parties to make a request for document disclosure but does not specify when this request should be made or whether a late request for document production constitutes a valid ground for its refusal. Taking into account that the issue of refusal of an application for document production is very fact-specific, speakers identified the following potential factors to be considered by tribunals:

• Whether there are legitimate reasons for the late request;
• Whether such request severely impacts the timetable of the proceedings;
• The materiality of the requested document to the outcome of proceedings;
• The conduct of the parties up to the time the request is made;
• Whether refusing such a request violates principles of procedural fairness.

Privilege and confidentiality related issues in arbitration

Applicable law to privilege

Article 9.2. (b) of the 2020 IBA Rules defines privilege as one of the means for excluding a document from evidence or production under applicable rules. However, the determination of applicable rules to privilege is a contentious issue in international arbitration due to the divide between common and civil law on whether the question of privilege is procedural or substantive. The revised 2020 IBA Rules did not introduce any guidance on how an arbitral tribunal might determine which national legal privilege rules apply but rather left this at the discretion of the arbitral tribunal. Webinar speakers proposed that tribunals choose the law of the country where the document was produced as applicable rather than the lex arbitri or law of the contract. This suggestion was based on the argument that, while choosing the arbitral seat and substantive law, parties might not have intended for these rules to apply to documents produced before arbitration proceedings. In other words, applying the national legal privilege rules purely based on the location of the seat or the law governing the contract could be contrary to the parties’ expectations.

Speakers also commented on a recently developed transnational tool on privilege in arbitration, the Inter-Pacific Bar Association Guidelines on Privilege and Attorney Secrecy in International Arbitration (IPBA Guidelines). The IPBA Guidelines, having been developed by both common law and civil law lawyers, offer a universal standard on privilege and attorney secrecy specifically tailored to international arbitration proceedings.

Commercial and technical confidentiality: Treatment by the tribunal

The speakers expressed their views on the standard approach of tribunals for the exclusion of documents on grounds of commercial or technical confidentiality pursuant to Article 9.2. (e) of the 2020 IBA Rules.  According to Article 9.5 of the 2020 IBA Rules, arbitral tribunals may make certain arrangements to protect confidential information. Speakers commented on the following approaches for tribunals based on Jaguar Energy Guatemala v. China Machine New Energy Corp.:[i]

• Order the redaction of commercially or technically sensitive communication in the document. Speakers have noted that a redaction order might be unreasonable where documents alleged to be commercially or technically sensitive are material to the whole crux of the case;
• “Attorney-eyes only” order, which subjects the information to be shown only to external lawyers, external experts but not to the parties, employees, and internal personnel.

[i] Jaguar Energy Guatemala v China Machine New Energy Corp [2018] SGHC 101