Fernando Mantilla-Serrano
Co-Chair 2016-2019, IBA Arbitration Guidelines and Rules Subcommittee; Review Task Force; Latham & Watkins, Paris
fernando.mantilla@lw.com

In February 2021, the IBA published its revised Rules on the Taking of Evidence in International Arbitration (the 2020 IBA Rules of Evidence). The 2020 IBA Rules of Evidence, the second revision of the IBA Rules of Evidence since their inception in 1999, is a thoughtful and delicate exercise in fine-tuning the rules and ensuring their continued alignment with evolving best practices in international arbitration.

As Co-Chair of the IBA Arbitration Guidelines and Rules Subcommittee (the Rules Subcommittee) between December 2015 and December 2019, I was jointly responsible for setting up the Task Force for the revision of the IBA Rules of Evidence, defining its mandate and guiding its discussions. In addition, I led the preparation of the 2016 Report on the Reception of the IBA Arbitration Soft Law Products (the 2016 IBA Report) which was a precursor to the 2020 revision of the IBA Rules of Evidence.

In this article, I will discuss my experience leading these projects.

The 2016 Report on the Reception of the IBA Arbitration Soft Law products

In June 2015, the IBA Arbitration Committee constituted the Rules Subcommittee to conduct a comprehensive study on the use of the IBA practice rules and guidelines for arbitration worldwide (including the IBA Rules of Evidence) and to learn how they are being applied in different jurisdictions. In December 2015, I was appointed Co-Chair of the Rules Subcommittee.

As a starting point for the study, the Rules Subcommittee prepared and distributed a detailed survey questionnaire to solicit comment from arbitration practitioners on the use and reception of the IBA rules and guidelines. To obtain responses representative of the largest number of legal cultures as well as ensure the quality and quantity of the data, the Rules Subcommittee circulated the survey questionnaire to all members of the IBA Arbitration Committee and all major arbitral institutions in the world, which in turn circulated the survey questionnaire to their distribution lists.

With the helpful assistance of the IBA Arbitration Committee and the participating arbitral institutions, the Rules Subcommittee received 1,310 responses from across the globe, from respondents with different levels of exposure to international arbitration, including counsel, arbitrators, case administrators, users and scholars. To process and analyse the large number of responses received, the Rules Subcommittee developed a data analysis tool using electronic spreadsheet software that tabulated the answers to each of the thirty-five questions presented in the survey questionnaire.

Of the 1,310 responses received, the Rules Subcommittee identified 845 ‘meaningful’ responses, that is, responses in which the respondents answered a significant number of questions. Of these 845 responses, 323 of them (39 per cent) came from Europe, 199 (25 per cent) came from Latin America, 136 (17 per cent) came from the Asia-Pacific region, 78 (14 per cent) came from North America, 42 (5 per cent) came from the Middle East and 33 (4 per cent) came from Africa. These 845 meaningful responses constituted the underlying data for the preparation of the study.

In addition, the Rules Subcommittee appointed 77 reporters who prepared Country Reports analysing the data collected in 57 jurisdictions worldwide. The Rules Subcommittee received Country Reports from 23 jurisdictions in Europe, 13 in Latin America, nine in the Asia-Pacific region, two in North America, eight in the Middle East and two in Africa. The meaningful responses and the Country Reports provided a diverse and representative reference point for the assessment of the global status and usefulness of the IBA rules and guidelines, and helped identify areas of potential reform.

Afterwards, the Rules Subcommittee was divided into three subgroups, each of which was assigned one of the IBA rules and guidelines. The subgroups were tasked with the preparation of a draft subsection of the final report summarising and analysing the data collected. Each subgroup was directed to identify the reception of their respective IBA soft law instrument in arbitral practice, domestic case law and legal publications. In addition, the subgroups were instructed to determine whether the survey detected a need to amend the IBA soft law instruments in question and identify any suggestions in that regard. The Subcommittee Chair then assembled a full version of the final report, which was then circulated to the Rules Subcommittee for review and comment. In September 2016, the Rules Subcommittee published the 2016 IBA Report.

The 2016 IBA Report found that the IBA Rules of Evidence are, by a large margin, the most widely known and accepted IBA soft law instrument in international arbitration. According to the 2016 IBA Report, the IBA Rules of Evidence were referenced in nearly half (48 per cent) of the arbitrations known to respondents. Further, only 9 per cent of respondents opined that the IBA Rules of Evidence should be amended. Some survey responses also identified areas for potential reform, including in particular the issue of privilege, the scope of document production, as well as the clarification of the terms ‘relevance’, ‘materiality’ and ‘category’. The 2016 IBA Report recommended that the IBA Arbitration Committee consider a revision of the IBA Rules of Evidence on their ten-year anniversary in 2020, and establish a task force for that purpose.

Constitution and scope of the Task Force for the Revision of the IBA Rules of Evidence

Following the recommendations of 2016 IBA Report, the IBA Arbitration Committee and the Rules Subcommittee established a task force in May 2019 for the revision of the IBA Rules of Evidence (the Task Force). The Task Force was comprised of more than 30 international arbitration practitioners from all around the world with different backgrounds and perspectives.^[1]

Of the 27 members of the Task Force, 11 of them (41 per cent) were European, five were from North America (18 per cent), four were from South America (15 per cent), three were from the Middle East (11 per cent), three were from Asia (11 per cent), one was from Africa and another was from Australia. In addition, there was gender diversity in the Task Force, as 14 of its members (52 per cent) were male whereas the other 13 (48 per cent) were female. The Task Force was divided in four subgroups, each of which were in charge of identifying concrete issues (if any) across the nine articles of the IBA Rules of Evidence as well as proposing amendments.

However, given the overwhelmingly positive reception of the IBA Rules of Evidence noted in the 2016 IBA Report, the Task Force was advised to propose amendments only to those rules that truly required them. In other words, the mandate of the Task Force was to clarify any possible ambiguities in the rules, suggest targeted improvements, and incorporate any new developments on the international arbitration practice in the taking of evidence. As such, a complete overhaul of the IBA Rules of Evidence was ruled out from the beginning.

The Task Force was also advised to conduct a review of the commentary to the IBA Rules of Evidence. In so doing, the Task Force was asked to consider two issues:

1. whether the commentary to the IBA Rules of Evidence should be harmonised and bundled into the rules themselves (as is the case with the other IBA arbitration soft law instruments); and
2. whether any proposed changes to the IBA Rules of Evidence (including those identified in the 2016 IBA Report) could be addressed by just updating the comments to the rules.

Additionally, the Task Force was reminded that the commentary to the IBA Rules of Evidence is not intended to address every imaginable issue regarding the taking of evidence but simply to provide guidance and flexibility in the application of the IBA Rules of Evidence. The IBA Arbitration Committee also advised the Task Force against making the commentary to the IBA Rules of Evidence overcomplicated or lengthy.

Revision process of the IBA Rules of Evidence

The Rules Subcommittee set out an ambitious schedule to carry out the revision of the IBA Rules of Evidence. Following its mandate to carry out a limited revision of the IBA Rules, the subgroups first prepared lists of potential issues to review in the sections of the IBA Rules of Evidence and commentary assigned to them. The lists of issues were then circulated to the other subgroups for comment, to narrow down the number to those that truly required an amendment to the rules or commentary. The subgroups then submitted first drafts of the proposed amendments to their respective sections of the IBA Rules of Evidence and commentary. The drafts were later circulated to the other subgroups for comment. Again, the subgroups were advised to make a conscious effort to limit the number of amendments to those that were truly necessary.

Following the exchange of comments to the first drafts, the subgroups prepared second drafts of the proposed amendments. The second drafts were then circulated to the other subgroups, the IBA Arbitration Committee and the general public for comment. In addition, the Task Force invited the members of prior revision efforts of the IBA Rules of Evidence to provide feedback. As a result, the Task Force received 45 responses, which resulted in additional changes to the proposed amendments. Then, the Task Force finalised its draft of the amendments to the IBA Rules of Evidence, which was submitted to the IBA Council for approval. The IBA Council adopted the 2020 IBA Rules of Evidence in December 2020.

Challenges of the IBA Rules of Evidence revision process

By far, the greatest challenge of the revision process of the IBA Rules of Evidence was to avoid the temptation of making wholesale changes to the rules and commentary. Indeed, the Task Force initially identified potential issues in practically every single provision of the IBA Rules of Evidence. For example, among the dozens of issues identified, the Task Force considered whether the terms ‘relevant to the case’ or ‘material to its outcome’ should be defined in the IBA Rules of Evidence. However, the Task Force concluded that no consensus on the meaning of those terms existed in international arbitration practice and therefore it was impossible to propose a definition.

Similarly, the Task Force considered whether the definition of the term ‘document’ should be modified in order to include certain technologies, such as SMS or WhatsApp messages. The Task Force decided against adding express references to these or any other technologies as it risked rendering the IBA Rules of Evidence outdated with the inevitable emergence of other new technologies. In addition, the Task Force considered whether the IBA Rules of Evidence should include guidance on the law applicable to the issue of privilege, and clarify whether a party must produce a privilege log or otherwise identify responsive documents they are withholding on the basis of legal privilege. Ultimately, the Task Force took the view that it was better to leave the questions of privilege to arbitral tribunals, as the concept of privilege is not universally recognised around the world and proposing to deal with these issues in the IBA Rules of Evidence would give the impression of a common law bias.

Some of the changes that were in fact adopted in the 2020 IBA Rules of Evidence reflect the concerns existing at the time the rules were reviewed. For example, in May 2018, the European Union implemented the General Data Privacy Regulation, which inspired similar data protection regimes around the world. This raised issue whether the IBA Rules of Evidence needed to set more stringent data privacy requirements, as there was a concern that document production requests would be opposed on the basis of blanket and generic data protection objections. The Task Force also considered whether the IBA Rules should include an obligation on parties and the Tribunal to ensure that their handling of documents complies with data privacy regulations.

Accordingly, Article 2.2(e) of the 2020 IBA Rules includes language advising the arbitral tribunal and the parties to discuss issues of cybersecurity and data protection at the outset of the arbitration. Similarly, Article 8.2 of the 2020 IBA Rules, which deals with remote hearings, is a direct consequence of the Covid-19 pandemic. Indeed, during my tenure as Co-Chair of the Rules Subcommittee, the issue of remote hearings was not considered at all. It is my understanding that the issue was raised by the public in the early days of the pandemic in 2020. This is clearly an example of the remarkable ability of the international arbitration community to react and adapt to large-scale changes in the world.

Notes

^[1]The members of the Task Force were: Carmen Martinez López (Spain); Stefan Brocker (Sweden); Cecilia Carrara, (Italy) Kabir Duggal, (India/United States); Valeria Galindez (Brazil/Argentina); Babajide Ogundipe (Nigeria); Andrey Panov (Russia); Noiana Marigo (Argentina); Samantha Rowe (United Kingdom/Ireland); Anne-Véronique Schlaepfer (Switzerland); Jimmy Skjold Hansen (Denmark); Helen H Shi (China); Mohamed Abdel Wahab (Egypt); Roland Ziadé (Lebanon/France); Daniel Busse (Germany); Pierre Bienvenu (Canada); Laura Halonen (Finland/Germany); Ben Juratowitch (Australia); Tejas Karia, (India) Erica Stein (United States); Cosmin Vasile (Romania); Sabina Sacco (Chile); Hassan Arab (United Arab Emirates); Ximena Herrera-Bernal (Colombia); Bartosz Kruzewski (Poland); Isabelle Michou (Canada); Tyler B. Robinson (United States); Ariel Ye (China).