The 2010 revisions of the IBA Rules of Evidence

Guido Santiago Tawil
Co-Chair, 2009-2010, IBA Arbitration Committee; Member, IBA Rules of Evidence Subcommittee for 2010 revision
guidotawil@arb-chambers.com

The production of evidence in international arbitration has driven the attention of the IBA for several decades. 

In 1983, the IBA adopted the Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration (the 1983 Rules). Due to the significant changes that took place in the following decades, the Arbitration Committee (then Committee D) decided to update the 1983 Rules. It formed a Working Party in 1997, drafts were discussed and circulated for public comment, and on 1 June 1999 the IBA Rules on the Taking of Evidence in International Commercial Arbitration (the IBA Rules) were adopted by the IBA Council.

The IBA Rules were considered a very successful harmonisation of the procedures existing in the different legal cultures and were very well received. They were widely used, irrespective of the legal background of the parties and counsel involved, and quickly became the common accepted standard in international arbitration. 

In 2008 our Committee^[1] initiated the update of the IBA Rules by establishing a new Review Subcommittee.^[2] An online survey was conducted in 2008, and working meetings and discussions took place during 2008 and 2009 in Buenos Aires, Dubai and in Madrid. In late 2009 a first draft of the revised IBA Rules was discussed at several arbitration events, circulated for public comment and the opinion of the main international and regional arbitration institutions was requested. As a result of such consultations and discussions, over 1,200 comments and suggestions were received and reviewed throughout the process. On 29 May 2010 the revised IBA Rules on the Taking of Evidence in International Arbitration (the 2010 IBA Rules) were adopted by the IBA Council,^[3] and an updated Commentary on the Revised Text of the 2010 IBA Rules was published shortly after. 

On the understanding that no radical changes were needed nor convenient (following the maxim ‘if it ain’t broke, don’t fix it’), the text of the 2010 revision reflected the Committee´s decision to change and update the IBA Rules only as strictly necessary to reflect new developments since 1999 and best practices in international arbitration.^[4]  Therefore, the same structure, mechanisms and successful balance were maintained. A similar criterion was followed by the Committee during the 2020 revision. 

The Committee’s main goal was, while maintaining the structure to which users had become used in the first decade of the IBA Rules, to address some of the new trends (such as e-disclosure, videoconferencing and witness conferencing) and challenges (as those related to procedural economy, efficiency and good faith behaviour in the production of evidence) that had arisen in the past years. 

The main changes introduced in the 2010 revisions were as follows:

• The word ‘commercial’ was deleted from the title to acknowledge the fact that the IBA Rules were frequently used both in commercial and non-commercial arbitration, such as investment disputes.
• The Committee included in the first phrase of the Preamble the idea that the Rules of Evidence are intended to provide an ‘efficient, economical and fair process’ for the taking of evidence. The reference to the principle of fairness was consistent with the inclusion in paragraph 3 of the Preamble, of the requirement that each Party shall act ‘in good faith’ in the taking of evidence and that a violation of the good faith requirement could result in the consequences set forth in Articles 9.5, 9.6 and 9.7. of the IBA Rules, in particular on the assignment of the costs of the arbitration.
• The 2010 revisions introduced a change in the definition of ‘Document’ to ensure that all forms of evidence, including electronic evidence, were subject to the IBA Rules and may be requested, subject to (1) the requirements of Article 3.3, including satisfaction of the relevance and materiality standard, and (2) the reasons for objection set forth in Article 9.
• A new Article 2 was added, providing in Article 2.1 for a mandatory consultation between the arbitral tribunal and the parties ‘at the earliest appropriate time in the proceedings’. Article 2.2. listed the issues that may be appropriate for discussion at the consultation but did not limit them nor prescribed how evidence should be taken in any particular arbitration. Article 2.2(e) encouraged discussion of means to save time and costs in the arbitration and refered to the conservation of resources in connection of the taking of evidence. Finally, Article 2.3 encouraged arbitral tribunals to identify to the parties, as early as possible, the issues that they may regard as relevant to the case and material to its outcome while also noting that a preliminary determination of certain issues could be appropriate.
• As documents in electronic form had become increasingly relevant and their production may become burdensome to the requested party, when referring to Document Production the 2010 revisions introduced in Article 3.3(a)(ii) the means for parties to identify more precisely a narrow and specific requested category of documents maintained in electronic form. Either at a party’s own request or upon order of the arbitral tribunal, electronic documents may additionally be identified by file name, specified search terms, individuals (ie, specific custodians or authors) or other means of searching for such documents in an efficient and economic manner. 
• Under the 1999 IBA Rules, documents produced pursuant to a request to produce were to be sent to the other parties in the arbitration and the arbitral tribunal. This rule was revised in 2010 in the understanding that it is not efficient for arbitrators to review the documents at the stage of their production and that documents should be considered formally incorporated into the arbitration file only if introduced by the parties in their further submissions. Accordingly, the default was changed such that documents were to be produced to the other parties and only to the arbitral tribunal if it so requests.
• According to the 1999 IBA Rules, a party seeking to oppose entirely or to limit a request to produce must raise its objections in writing within the time ordered by the arbitral tribunal. The 2010 revisions provided in Article 3.6. that the arbitral tribunal may, before deciding on the objections raised and the propriety of the request to produce, give the parties an opportunity to consult with each other with a view to resolving the objection themselves.
• Revised Article 3.13 expanded the confidentiality protection already existing to documents submitted or produced by a party not otherwise in the public domain to documents submitted by non-parties and added an exception to produce for situations in which a party must disclose in order ‘to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority’.
• The 2010 revisions addressed in new Article 3.14 the possibility of bifurcating the production of documentary evidence in case that the arbitral proceedings are separated in different phases (such as jurisdition, preliminary determinations, liability or damages).
• Concerning witnesses of fact, Article 4.3 clarified that it is permissible, in the context of the preparation of written witness statements, to discuss the prospective testimony with the witness. Article 4.5.b stated that any new documents on which a witness relies in its written witness statement must be provided. 
• Article 5 introduced new requirements for expert reports. Each party shall identify early in the proceedings the party-appointed experts on which it intends to rely and the subject matter of such testimony. The list of issues to be contained in the expert’s report was extended in Article 5.2, in order to include: (1) a statement regarding the expert’s relationship with the parties, their legal advisors and the arbitral tribunal; (2) a statement of independence from all of them; and (3) ‘a description of the instructions pursuant to which he or she is providing his or her opinions and conclusions’. If the expert report has been signed by more than one person, it must indicate the specific parts of the expert report attributed to each author. The new Article 5.3 allowed for revised or additional expert reports responding only to matters contained in another party’s witness statements, expert reports, or other submissions that have not been previously presented in the arbitration. 
• As in the case of party-appointed experts, tribunal-appointed experts were requested in Article 6 to describe their qualifications and make sure that no conflict of interest exists with respect to the parties, the arbitral tribunal, and/or the parties’ legal advisors. It was also established that after the appointment of a tribunal-appointed expert, a party may object to the expert’s qualifications or independence for reasons of which the party becomes aware after the appointment has been made. 
• Concerning the evidentiary hearing, a new Article 8.1 was introduced, according to which each party must inform the arbitral tribunal and the other parties of the witnesses whose appearance it requests. While the original Rules required witnesses to appear at the hearing after they had filed a written witness statement unless the parties agreed otherwise, under the 2010 revisions witnesses were required to appear for oral testimony only if their appearance was requested by a party or the arbitral tribunal. The use of video-conferencing or similar technology for witness examination was also introduced, subject to prior authorisation of the arbitral tribunal. 
• The exclusion of evidence due to legal impediment or privilege has always been a sensitive issue. While the 1999 IBA Rules provided in its Article 9.2.b for exclusion of evidence based on privilege, no further guidance was provided. A new Article 9.3 was introduced in the 2010 revisions, providing the arbitral tribunal with a list of considerations that it may weigh when considering if allegations of legal impediments or privilege should exclude evidence.

Harmonised guidelines such as the Rules have become extremely valuable tools that assist both experienced and non-experienced counsel and parties, and favour the development of more efficient proceedings. Parties and arbitral tribunals may adopt them (in whole or in part), use them as guidelines or freely adapt them to the particular circumstances of each matter.

More than 20 years have passed since the original IBA Rules were adopted. The 2010 revisions were intended to adapt the IBA Rules to the new trends and challenges while preserving a product widely applied and accepted by the arbitral community.

While discussions on one or other proposed solutions will always exist, the IBA Rules remain today as the most successful, broadly accepted and widely used guidelines in international arbitration. 
 

Notes

^[1]At the time the revision process started the Arbitration Committee was led by Sally Harpole and Pierre Bienvenu. It was concluded under the leadership of Judith Gill and Guido S. Tawil.

^[2]The Subcommittee was led by Richard Kreindler (United States/Germany). Its members were David Arias (Spain); Mark Baker (United States); Pierre Bienvenu (Canada); Antonias Dimolitsa (Greece); Paul Friedland (United States); Nicolás Gamboa (Colombia); Judith Gill, K.C. (United Kingdom); Peter Heckel (Germany); Stephen Jagusch (New Zealand); Xiang Ji (China); Kap-You (Kevin) Kim (Korea); Amy Cohen Kläsener (United States/Germany, Review Subcommittee Secretary); Toby T. Landau, K.C. (United Kingdom); Alexis Mourre (France); Hilmar Raeschke-Kessler (Germany); David W. Rivkin, (United States); Georg von Segesser (Switzerland); Essam al Tamimi (UAE); Guido S. Tawil (Argentina/Portugal); Hiroyuki Tezuka (Japan) and Ariel Ye (China).

^[3]Translations of the 2010 Rules of Evidence were prepared and made available to the public shortly after in Arabic, Chinese, French, German, Greek, Italian, Japanese, Korean, Portuguese, Spanish, Russian and Turkish. 

^[4]The Committee took the view that (1) due to the wide acceptance and extended use of the 1999 Rules of Evidence changes would trigger unnecessary debates and could mislead on the reasons behind them, creating more problems than benefits. Therefore, only those changes strictly necessary were adopted and language editions were limited even if they could be considered to read better; and (2) once adopted, the text of the Rules of Evidence should be considered complete and independent from the individual opinion of those that participated in their drafting. The only exception is the updated Commentary of the Rules, published shortly after.