The International Bar Association’s Rules of Evidence Review Subcommittee recently released in draft form a revised version of the IBA Rules on the Taking of Evidence in International Arbitration (the revised Rules), the original (and current) version of which came into operation in 1999 and has gained wide acceptance within the international arbitral community. The revised version was submitted to the IBA Council for approval in March 2010.
The Rules are intended as a resource to parties and arbitrators to provide an efficient, economical and fair process for the taking of evidence in international arbitration. They provide mechanisms for the presentation of documents, witnesses of fact, expert witnesses, inspection, and the conduct of evidentiary hearings. The Rules may be adopted in whole or in part, at the commencement of the arbitration or at any time thereafter, leaving parties free to adapt them to the particular circumstances of each arbitration. Of note among the additions to the revised Rules are clauses in which the prevalence of electronic documentation is recognised:
- where one party makes a request of another party to produce any document(s) in electronic form, the requesting party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such documents in an efficient and economical manner (Art 3(3)(i)), and
- requested documents that a party maintains in electronic form are to be submitted or produced in the form most convenient or economical to that party that is reasonably usable by the recipients, unless the parties agree (or the Arbitral Tribunal orders) otherwise (Art 3(12)(b)).
In addition, Arbitral Tribunals are given further guidance in circumstances where evidence might be excluded as privileged or confidential (Art 9(3)). For example, the Tribunal may take into account, with respect to a particular document, statement or communication, whether it was made in connection with and for the purpose of providing or obtaining legal advice; any possible waiver of privilege by consent, earlier disclosure or use; and the need to maintain fairness and equality as between the parties, particularly if they are subject to different legal or ethical rules.
A final interesting addition to the Rules is Article 9(7), by which an Arbitral Tribunal that determines that a party has failed to conduct itself in good faith in the taking of evidence may take such failure into account in its assignment of the costs of the arbitration, including costs arising out of or in connection with the taking of evidence.
Note that, under the revised Rules, where the parties have agreed to apply the IBA Rules of Evidence, they will be deemed to have agreed, in the absence of contrary indication, to the version as current on the date of that agreement.