IBA Updates Rules on the Taking of Evidence in International Arbitration

On May 29, 2010, the International Bar Association (IBA) Council adopted new Rules on the Taking of Evidence in International Arbitration. The new Rules, developed by a Subcommittee comprised of 22 practitioners from a wide variety of legal systems, reflect the first amendments since 1999. The revised rules apply to any agreement to use the IBA Rules made after May 29, 2010.

According to the January 18, 2011 American Bar Association Section of International Law Arbitration Committee Call Minutes, the more substantive Rules,

conform to the actual practice of parties and tribunals in international arbitrations:

• The revised rules now expressly incorporate a requirement of good faith in taking evidence. While uncontroversial, the implications of this rule, and whether it will lead to anything new in practice, are still unclear.
• The revisions now provide that the tribunal is to meet and consult with the parties at the earliest appropriate time regarding anticipated evidentiary issues. This frequently occurs already, either by way of institutional rules or simply as a matter of practice.
• Again consistent with actual practice, under the new revisions, documents are to be produced in the first instance only to the opposing party, and not to the tribunal.
• The amendments now provide greater guidance to the tribunal on how to address requests for documents or information maintained in electronic form, e.g., by way of limiting to certain document ‘custodians’ or by using a list of search terms designed to cull out irrelevant documents.
• Confidentiality protections governing documents have been expanded; now, any documents submitted in an arbitration, whether by a party or non-party, are automatically considered confidential. This revision was designed to account for the wide variation in national laws on this subject.
• The revisions provide more specific guidance for arbitrators regarding issues of legal privilege; however, the rules do not endorse or adopt any single approach as they vary across jurisdictions.

Disputing previously discussed the new Rules here. More information, including a link to the new IBA Rules, is available here.

Technorati Tags: law, ADR, arbitration