Improvements in technology and advances brought about by the pandemic influence the latest changes to the IBA’s Rules on Taking Evidence in International Arbitration

In this article, we provide a brief overview of the main updates and explain what the changes mean for parties who either have applied, or intend to apply, the 2020 Rules in arbitral proceedings. The 2020 Rules themselves can be found here.

Although the updates do not represent a wholescale shift from the former edition of the IBA Rules, they demonstrate the IBA’s recognition of the need to modernise and streamline arbitral practice in light of the lessons of the COVID-19 pandemic.

Technological Updates

• The former edition of the Rules encouraged consultation between the parties and the tribunal to agree on an efficient, economical and fair process for the taking of evidence. The 2020 Rules now include an express provision empowering the tribunal to consult with the parties on the treatment of cybersecurity and data protection issues (Article 2.2(e)). This addition acknowledges the importance of ever-increasing technological requirements and compliance with new or updated data protection obligations placed on parties (for example, under the EU GDPR). Parties will be required to consider, and implement, appropriate and proportionate cybersecurity measures before data and documents are shared.
  
  
• COVID-19 has compelled parties to conduct evidentiary hearings remotely. Reflecting this practice, the 2020 Rules include provisions to allow parties to request, or the tribunal to order of its own accord, that an evidentiary hearing be held remotely (Article 8.2). The tribunal, working with the parties, will establish a protocol to ensure that the remote hearing is conducted efficiently, fairly and to the extent possible without interruption – suggestions for the protocol include: a proposal on the technology to be used; advance testing of the technology (and training in its use, if needed); consideration of how documents will be placed before a witness or the tribunal; and how to ensure witnesses giving oral evidence are not influenced or distracted.

Documents

• Updates to the heavily-used provisions of Article 3 of the IBA Rules are intended to introduce further clarity on the document production process. The updates confirm that parties may reply to objections to Requests to Produce (“Production Requests”) if permitted by the tribunal, but that this right is not automatic (Article 3.5). This reflects the position in practice whereby the right to object is frequently enshrined in a procedural order or in the form of ‘Redfern schedule’ agreed for the process.
  
  
• The 2020 Rules confirm that the tribunal does not have to consult with the parties when considering Production Requests, reflecting the reality that a hearing on disputed requests will not always be required (Article 3.7).
  
  
• Regarding the practicalities of document production, the 2020 Rules clarify that parties are not required to produce multiple copies of documents which are essentially identical, unless the tribunal decides otherwise (Article 3.12(c)). This will encourage parties to limit the scope of document production to only include copies of documents which are relevant to the underlying dispute. Additionally, the 2020 Rules clarify that parties will only be required to translate foreign language documents into the language of the arbitration where these are submitted to the tribunal (Article 3.12(d) and (e)). This particular amendment has been introduced to promote cost-efficiency and to combat concerns about extensive and voluminous Production Requests coupled with demands for translation of documents that may never ultimately be deployed.

Evidence

• Revisions to Articles 4 and 5 clarify that parties are permitted to revise or submit additional witness statements and/or expert reports if they respond to new factual developments that could not have been addressed in a previous witness statement or expert report (Article 4.6(b) and Article 5.3(b)). This illustrates a departure from the former rules which only allowed parties to submit additional or revised statements or reports in strict circumstances.
  
  
• As to tribunal-appointed experts, Article 6 has been amended, with significant impact. The former rules suggested that a tribunal-appointed expert, when deciding on disagreements as to their request for information or access, should have the same authority as that of the tribunal. The 2020 Rules make clear that only the tribunal has the authority to decide on such disputes (Article 6.3).
  
  
• The 2020 Rules clarify that the tribunal may, after hearing the parties, permit witnesses to give evidence at an evidentiary hearing even if the parties have agreed or the tribunal has ordered that the witness statement or expert report serve as direct testimony, and there is no request to cross-examine the witness in question (Article 8.5).
  
  
• Significantly, a new provision gives the tribunal power to exclude evidence obtained illegally – either at the request of a party or of its own volition (Article 9.3). The 2020 Rules do not define what would constitute “evidence obtained illegally” or give any practical examples. Accordingly, it will be necessary for parties to consider the applicable law or laws relevant to the arbitral process when seeking to establish if evidence was obtained illegally.

Summary

The IBA’s aim in updating the IBA Rules was to modernise and streamline the existing provisions. Many of the updates align the 2020 Rules with prevalent practices within the field of international arbitration and remove ambiguous or confusing drafting. New provisions have been added in recognition of technological developments, such as increased reliance by parties on remote hearings and acknowledgment of the importance of cybersecurity issues. Perhaps the most significant amendment will prove to be the introduction of powers enabling tribunals to exclude illegally obtained evidence. It remains to be seen how parties will seek to engage this provision and how disputed issues are handled.

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