Welcome to the Spring 2026 edition of the IBA Litigation Committee Newsletter, entitled: ‘The future of evidence: cross-border evidence gathering and discovery, AI-based evidence review, digital traces and procedural fairness’.
Released on Apr 14, 2026
The IBA Litigation Committee's EU Judicial Cooperation Subcommittee, established in 2025, aims to promote the resolution of cross-border disputes within the European Union. Our main focus is on facilitating the exchange of ideas on legal and practical issues that arise when litigating in an EU-wide context. The subcommittee thus covers a range of topics, including jurisdictional issues, service of documents, taking of evidence, and enforcement of judgments, to name but a few.
Released on Apr 14, 2026
Across the world, advances in technology have streamlined the collection and storage of evidence, having an effect on the legal process overall. With the rising complexity of these technologies, we see the deepening of the divide between those in South Africa who have true access to justice and those who have a stunted version. These advancements have resulted in procedures in law that previously did not exist, leaving those disadvantaged in a precarious situation of being unable to use these technologies or relying on an overburdened and under-resourced attorney. This article will examine how technological development may affect procedural fairness and offer recommendations to avoid unfairness.
Released on Apr 14, 2026
As generative AI improves, the risks associated with deepfake evidence increase. This article explores these risks and how they map onto existing and proposed evidentiary rules in Canada, ultimately concluding that – in a world where truth is increasingly less apparent – more may be needed to protect litigation’s truth-finding function.
Released on Apr 14, 2026
This article addresses the use of AI in the legal profession within the German legal system. The question of possible applications and the limits in the context of legal practice is discussed, using a case study as an example. The article then goes on to examine the consequences for the courts regarding the use of AI for evidence.
Released on Apr 14, 2026
This article deals with the growing reliance on digital evidence in contemporary litigation and the challenges surrounding its admissibility. It highlights the tension between the technical authenticity of electronic records and the legality of the methods used to obtain them. The article examines the need for courts to assess not only the reliability of digital evidence but also the fairness, privacy implications, and legitimacy of its collection.
Released on Apr 14, 2026
This paper assesses the evidentiary value of WhatsApp and SMS screenshots – and, by analogy, ordinary unsigned emails – in Italian civil litigation. Courts treat such communications as ‘mechanical reproductions’ under Article 2712 of the Italian Civil Code, giving them full probative effect unless their conformity is specifically disavowed. The paper summarises the impact of disavowal and the main routes to prove authenticity (verification proceedings, court-appointed forensic analysis, presumptions, and witness evidence), and briefly discusses their use to support applications for payment orders and, in stricter cases, provisionally enforceable injunctions.
Released on Apr 14, 2026
In contemporary disputes, evidentiary debates are increasingly shaped by information stored in digital environments. Data such as emails, messaging records, and information contained in internal corporate databases may become the subject of judicial proceedings through various means, including seizure by public authorities, access to systems by third parties, or leaks originating from within an organisation. What is often decisive for evidentiary purposes, however, is not what such records say, but how they were obtained. A piece of data may serve to prove a material fact if it has been obtained through a lawful process; yet where it is the product of an unlawful interference, it may lose its evidentiary character altogether. This article examines how the evidential status of digital data is assessed under Turkish law depending on the method by which such data was obtained.
Released on Apr 14, 2026
This article examines the evidentiary status of AI-generated material in disputes, primarily in litigation. The analysis is grounded in Indian law and contemporary judicial practice, with comparative references to other jurisdictions. It analyses key concerns around admissibility, reliability, and procedural fairness, particularly in light of the opacity, inconsistency, and potential fabrication inherent in AI outputs. While Indian courts have cautiously engaged with AI as a tool for preliminary research, they remain reluctant to treat it as substantive evidence. The article argues that any future acceptance of AI-generated evidence must be anchored in clear disclosure, verifiable methodology, and human oversight to preserve the integrity of judicial processes.
Released on Apr 14, 2026
A recent Southern District of New York receivership dispute illustrates how modern evidence—WhatsApp messages, email payment instructions, rent ledgers, and cross‑border property records—can be critical in post‑judgment enforcement. This article distills practical lessons on authentication, translation, chain of custody, and fairness when a non‑party’s property interests collide with receiver action across multiple jurisdictions.
Released on Apr 14, 2026
This article explores the mechanisms and limitations of cross-border discovery in Ukraine. The article examines the application of the Hague Evidence Convention, bilateral treaties, and domestic legislation, highlighting the advantages and challenges associated with each. It further compares cross-border discovery with discovery in international commercial arbitration and discusses alternative discovery methods to mitigate the hurdles of conventional discovery.
Released on Apr 14, 2026
Digital communications – including emails, messaging applications and other electronic records – increasingly shape the evidentiary landscape of civil disputes. In North Macedonia, civil procedure does not regulate individual forms of digital communication, yet the broad statutory concept of documentary evidence allows such material to be relied upon in court. The more complex questions arise not in admissibility but in evaluating authenticity, completeness and evidential weight. This article examines how local courts approach digital communications as evidence and highlights emerging practical and procedural challenges in modern civil litigation.
Released on Apr 14, 2026
Generative Artificial Intelligence (“GenAI”) poses potentially significant challenges to the processes of disclosure of documents and other evidence in common law adversarial litigation. Forgeries and other fraudulent documents are hardly new. But with the now widespread availability of high quality large language model, text-to-audio, text-to-image, and text-to-video tools, the barriers to a malicious actor creating a plausible, but inauthentic, document have never been lower. A party to litigation acting in bad faith might disclose or otherwise share such a document with opposing parties to either (a) rely on it at a hearing; or (b) sow doubt and confusion, even if not eventually relied upon at a hearing. In the face of these risks, it is incumbent on practitioners to ask whether the existing procedural guardrails against forged documents are fit for purpose. We identify potential scenarios for bad actors to use documents forged with the assistance of GenAI, the existing procedural guardrails in three common law jurisdictions and their limitations, and finally some possible responses to the challenge.
Released on Apr 14, 2026
Commercial disputes increasingly turn on digital evidence dispersed across servers, collaborative platforms, and secured devices. Cross-border data access raises significant procedural challenges, while synthetic or manipulated content introduces new authentication concerns. Drawing on recent scholarship and emerging best practices, this article proposes a framework − termed the 'portable integrity protocol' − for courts and arbitral tribunals navigating these uncharted waters.
Released on Apr 14, 2026
In an initial foray into what promises to be a busy and contentious area, two United States federal courts in different cases on the same day in February 2026 issued seemingly contradictory rulings on the novel issue of whether materials that litigants had generated themselves using publicly-available AI tools were protected from discovery.
Released on Apr 14, 2026
As global markets become increasingly interconnected, the rapid protection of assets across borders has moved to the forefront of international litigation. In Türkiye, the recognition and enforcement of foreign interim remedies remain a complex challenge due to the rigid "finality" requirement under the Private International Law (Law No. 5718). While direct enforcement is currently restricted by the Supreme Court’s settled jurisprudence, practitioners often utilize foreign orders as prima facie evidence to secure local relief. This article examines the current legal barriers in Turkish law, compares them with EU and US practices, and evaluates the strategic alternatives for foreign clients seeking legal assistance in Türkiye.
Released on Apr 14, 2026
Human interactions have undergone a paradigm shift — where traditional barriers of distance and time that once constrained human interaction have significantly diminished, and to the point where information, ideas, and instructions can traverse the world at the click of a button. This shift has significantly altered the evidentiary landscape of litigation, with disputes increasingly involving electronic records rather than traditional documentary evidence. This article examines Ghana’s statutory framework on electronic evidence, reviews emerging case law, and highlights practical challenges associated with digital records. It also considers comparative developments and explores how emerging technologies, including artificial intelligence and blockchain may influence evidentiary practices.
Released on Apr 14, 2026
What does it mean for Mexico's judiciary to begin self-regulating its interaction with algorithmic systems without a prior legal framework, without clear technical standards, and without robust methodological scrutiny?
Released on Apr 14, 2026
Recent cases in the Brazilian judiciary demonstrate that content generated by AI constitutes a present reality and may be misused, thereby calling into question the very notion of evidence as traditionally understood under Brazilian law. In light of this scenario, the discussion regarding the reliability of digital evidence produced by AI becomes paramount. The challenge is not limited to keeping pace with technological advancements but also entails addressing the risk of undermining evidentiary reliability. While legislative bodies try to regulate those issues, the Judiciary is required to develop mechanisms capable of verifying and auditing such evidence, while simultaneously safeguarding fundamental rights and ensuring the legal certainty of the proceedings.
Released on Apr 14, 2026
This article examines class actions in Australia alleging anti-competitive conduct in the ad tech sector. Drawing on the findings of the Australian Competition and Consumer Commission’s inquiries, the article analyses the claims under Australian competition law and considers the broader implications for proposed sector-specific digital services regulation.
Released on Apr 7, 2026
The latest H 1B cap registration cycle has unfolded amid unusually rapid and significant policy shifts driven by the Trump Administration’s restrictive immigration stance. Although the H 1B programme has long faced incremental regulatory tightening, recent developments mark a more profound transformation. Two measures in particular, the adoption of a far more aggressive prevailing wage structure and the introduction of a $100,000 fee via presidential proclamation have reshaped not only programme mechanics but also the pool of viable participants. Collectively, these changes signal a move away from a high volume, lottery based system toward a de facto merit and capital based selection model.
Released on Mar 31, 2026
mobility and investment-based residence within a diversified legal structure. Built progressively over decades, this multi-layered architecture is increasingly positioning Panama as a strategic platform for global mobility and regional business operations.
Released on Mar 31, 2026
In 2026, US employment immigration has shifted from a predictable system to a high-cost, merit-based framework. Key changes include a $100,000 ‘entry fee’ for overseas H-1Bs, a wage-weighted lottery and intensified vetting. These barriers are transforming global mobility into a strategic capital expenditure. Consequently, multinational corporations are pivoting toward distributed models, moving roles to satellite hubs in Canada and Mexico to avoid prohibitive costs and administrative delays. This ‘pay-to-play’ environment is pricing out mid-sized firms, creating a specialised labour vacuum and redefining immigration as a boardroom-level geopolitical strategy.
Released on Mar 31, 2026
Turkey’s short term work authorisation, Cross Border Service Provider (CBSP), is an excellent expansion to cross-border mobility options. CBSP is a work permit exemption which needs no visa sponsorship. It allows foreign nationals to perform consultative work in Turkey – without the need for a work permit. CBSP allows activities including conducting business, market or scientific research, providing training on business techniques and other forms of consulting. A consultant or trainer sent by their employer or working as an independent consultant can use CBSP for up to 90 days, thus reducing significantly time and procedural burdens
Released on Mar 31, 2026
The proposed Digital Networks Act (DNA) represents a significant step in the evolution of the European electronic communications law, replacing the existing directive-based framework with a directly applicable regulation. By centralising competences in areas such as market entry authorisation, spectrum management and enforcement, the DNA recalibrates the balance of powers between the EU and national authorities, with far-reaching implications in terms of state autonomy and market integration.
Released on Mar 26, 2026
Over the past three years, the European debate on digital networks has been largely dominated by the discussion on the level playing field, namely how to balance relationships and interests between connectivity operators and large over-the-top (OTT) platforms within the digital ecosystem. In this contribution, I will try to show how, behind the apparent technical neutrality of the EU Digital Networks Act proposal, lies a redefinition of the regulatory vocabulary on interconnection, net neutrality and the role of over the top infrastructures, which may profoundly affect future relationships between telcos and OTTs even in the absence of a true ‘fair share’ regime.
Released on Mar 26, 2026
On 21 January 2026, the European Commission published the long-awaited proposal for a Digital Network Act (DNA). This article explores the prospects of the DNA’s implementation, the surrounding debates by EU Member States regarding its effectiveness and how much of a change it really is from the previous Directive.
Released on Mar 26, 2026
This article explores the carefully reasoned decision in Commission for Communications Regulation v Sky Ireland Ltd, on whether contracts described as being of ‘indeterminate duration’, but containing a fixed minimum commitment period, fall within the scope of an EU Directive. This judgement sets out important clarifications on regarding contract law not only in Ireland, but addresses a structural feature common across EU telecommunications markets and grapples with the balance between formal contractual characterisation and the functional reality of consumer lock-in.
Released on Mar 26, 2026
France is experiencing a sustained and increasing involvement of its national authorities in the regulation of cloud services and generative artificial intelligence (AI). Through the combined efforts of the Government, the French Competition Authority (Autorité de la concurrence) (FCA) and the telecoms regulator (ARCEP) – and in anticipation of recent European instruments (the Data Act, the Digital Markets Act and the Artificial Intelligence Act) – a hybrid framework is emerging. This model, which integrates competition law and sector-specific regulation, may serve as a blueprint for other jurisdictions.
Released on Mar 26, 2026
This article examines Article 323-3-2 of the French Criminal Code, which criminalises certain conduct by online platform providers. Recent amendments have increased penalties and extended the provision’s scope, prompting high-profile criminal investigations. This analysis explores potential legal challenges based on incompatibility with EU provisions and definitional uncertainties.
Released on Mar 26, 2026