Almost by its very nature, international arbitration brings together parties from different nationalities and legal traditions. Everyone knows that individual legal traditions vary significantly from place to place, particularly relating to the taking of evidence. Yet the taking of evidence is at the heart of nearly all types of litigation processes, including arbitral disputes.
In order to transition varying legal traditions regarding the taking of evidence to a more cohesive approach, the International Bar Association (IBA) has been issuing rules dedicated to international arbitration since 1983. Commonly applied by arbitration practitioners because of the conciliation made between civil law tradition and common law tradition, these rules were revised in June 2010. The new IBA rules take into account new practices, precise former provisions and reflect some important technological breakthroughs.
It is important to stress that, unless the rules are contractually incorporated into the agreement by the parties, they are not mandatory for the parties or for the arbitrators. The purpose of the rules is to assist practitioners and arbitral tribunals, who often make reference to them as an interpretation standard.
One significant change in the new IBA Rules, as compared to the rules of 1999, is the recommendation to the arbitral tribunal to consult the parties on the taking of evidence at the earliest appropriate time and to encourage the parties to agree on an efficient, economical and fair process of the taking of evidence (article 2.1).
Another piece of advice, inherited from the principles of international arbitration, states that the parties must act in good faith with the taking of evidence throughout the entire arbitration procedure (preamble, paragraph 3). To that end, article 9(7) of the IBA Rules provides that the tribunal may increase the costs of arbitration for a defecting party, as well as any additional costs arising out of his or her bad faith behavior. The obligation to behave in good faith in the taking of evidence shall be taken seriously.
Other important changes to be noted relate to documentary evidence- specifically electronic evidence. Under article 3.12.b, the parties can maintain their documentary evidence in electronic form and must produce the evidence in the most economic and convenient manner possible.
“E-disclosure,” is defined as the process by which electronic data is searched before it is produced before a court or a tribunal. A request for production of documents will be admissible under article 3.3.a(ii) of the new 2010 Rules if the arbitral tribunal or opposing party identifies the specific documents and the search terms or any other means that would allow for an efficient and economical search of the documents. This new provision thus defines how precise the party’s or tribunal’s request should be. Its purpose is to prevent “fishing expeditions,” and at the same time, allow the party requesting specific electronic document to obtain it.
The revised IBA Rules are particularly useful guidelines for arbitration practitioners and arbitrators, reflecting a pragmatic, thoughtful approach to the taking of evidence.
