The revised IBA Rules on the Taking of Evidence in International Arbitration continue to provide a balance between common law and civil law practice as the predecessor, the 1999 IBA Rules. Aspects of arbitration practice as developed in the last ten years have been integrated into the revised version.
Among the most relevant changes are:
– The new paragraph 3 of the Preamble states that the taking of evidence shall be conducted on the principles that each party shall act in good faith.
– The new Article 2 requires the tribunal to consult with the parties at the earliest possible time in the proceedings in order to determine the process to be followed for the taking of evidence.
– For the production and submission of documents the “procedural economy”, “proportionality”, and “loss or destruction” are new factors to be taken into consideration. Which role they will play in the arbitration practice remains to be seen.
– For e-discovery the same requirements as for the production of other documents apply (Article 3.3 and Article 9.2), however, Article 3.3(a)(ii) provides the parties with an option to identify a narrow and specific requested category of documents maintained in electronic form through an identification by file name, specified search terms, individuals, or other means of searching for such documents.
– With regard to witness statements it is explicitly stated that it is not improper for the parties to discuss the prospective testimony. In Article 7.2 the revised provisions emphasize the duty of party-appointed experts to evaluate the issue in an independent and neutral fashion.
– The revised Article 9.3 provides guidance on the applicable privileges, although the standard to be applied is left to the discretion of the arbitral tribunal.ASA Bulletin