The rules on the taking of evidence in international arbitration are used as a benchmark by tribunals. So you probably want to know what the impact of recent revisions will be
The International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration were created in 1983 to provide a framework of provisions governing the presentation of evidence in arbitration proceedings. Tribunals will often refer to the rules as the benchmark for the key areas of disclosing evidence, witnesses and experts.
On 29 May, the IBA revised the rules to reflect current practices and challenges, such as dealing with the increasing amount of evidence held electronically. This article provides a brief summary of these changes and their 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. Parties are thereby given the opportunity to decide from the outset issues which often cause disruptions to proceedings.
In addition, the disclosure procedure is designed to restrict the volume of evidence in arbitrations. Although the rules achieve this to an extent, the time involved in this process can be lengthy when parties take differing views on “materiality” and serve extensive objections to requests to produce.
Article 3(14) has been inserted into the rules which allows the tribunal, in cases which have been organised into separate issues (such as jurisdiction, preliminary determinations, liability or damages), to schedule the submission of documents and requests to produce separately for each issue. This is a welcome addition as, in the early stages of large arbitrations, parties have often not considered the issues involved for each stage of the case in sufficient depth to provide complete disclosure on every aspect.
Tribunals are increasingly showing a preference towards the rules, particularly in cases which involve significant amounts of documentation, as the parties are given the freedom to decide the process and timetable they will follow leading up to, and subsequent to, exchange. 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”.
Electronically stored data
Recognising that evidence is often stored electronically, Article 3(a)(ii) has been updated so that requests for documents which are maintained in an electronic format may “identify specific files, search terms, individuals or other means of searching for such documents”.
This should reduce the scope for disagreement over imprecise requests and prevent “fishing expeditions” when carrying out document searches in data management systems. Online review systems provide a more efficient way of reviewing evidence held electronically than a potentially large volume of hard-copy documents.
However, the new wording of Article 3(a)(ii) has the potential to increase the number of documents disclosed. For example, a request to produce may call for minutes of a meeting, at which a key board decision was made, to be provided. Under Article 3(a)(ii), it may become difficult for parties to refuse requests such as this, which in the past may have been objected to because of their elusive nature. The requesting party may now provide specific and relevant search terms for the other party to use.
The rules have also been amended to deal with the cross-examination of witnesses. Now, witnesses will only be called to give oral evidence when their appearance has been requested by a party or the tribunal. In addition, in respect of expert witnesses, they are required in their reports to describe the instructions given and provide a statement of their independence from the parties, legal advisers and tribunal.
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.
Pamela McDonald is a member of the construction team at Pinsent Masons