By Melissa Lin and Belinda Green.
The International Bar Association (IBA) published its revised Rules on the Taking of Evidence in International Arbitration (the Rules of Evidence) on 17 February 2021.
The revised rules will apply to all arbitrations in which the parties agree to apply the IBA Rules of Evidence after 17 December 2020. This may be as part of a new agreement to arbitrate or in determining the procedural rules to apply in a future or pending arbitration.
Why the change?
The first revision of the Rules of Evidence took place in 2010. It was conservative and only updated what was necessary to reflect new developments and best practice in international arbitration since 1999.
This 2020 revision came about following a 2015 worldwide survey on the use of the IBA arbitration guides and rules conducted by the IBA Rules subcommittee. Published in a 2016 report, the survey results showed that the majority of respondents were generally satisfied with the Rules of Evidence but noted that a revision may be considered on the ten-year anniversary of the last revision.
As with the 2010 revision, this revision is modest in nature. The Review Task Force recommended limited changes, mostly to ensure greater clarity.
Only three changes were proposed by the Review Task Force.
- Adding cybersecurity and data protection into the list of issues that the initial consultation on evidentiary issues may address (Article 2).
- Allowing for remote hearings to take place and requiring the Arbitral Tribunal to establish a protocol on conducting the remote hearing (Article 8).
- Allowing the Arbitral Tribunal to exclude evidence obtained illegally (Article 9).
These proposals are all reflected in the revised Rules of Evidence.
Cybersecurity and data protection (Article 2)
The inclusion of cybersecurity and data protection in new Article 2.2(e) demonstrates how important data security is to ensure best practice in international arbitration.
Cybersecurity and data protection were discussed in further detail in the Roadmap to Data Protection in International Arbitration, a joint publication produced by the IBA and other actors in the international arbitration field. Those of you interested to learn more about the importance of these issues may also wish to read the ICCA’s Protocol on Cybersecurity in International Arbitration.
Remote hearings (Article 8)
The changes to permit and facilitate remote hearings recognise and respond to modern issues. They reflect our increased reliance on technology for communication and the impact of the COVID-19 pandemic on day-to-day life.
Remote hearing is a new term adopted in the revision. It is defined broadly to encompass not only telecommunication and video communication, but any other kind of communication technology that allows people in more than one location to simultaneously participate. This term is used in a new Article 8.2, which provides guidelines for the Arbitral Tribunal to establish protocols in consultation with the parties that can be specific to the platform they choose.
This new rule encourages Arbitral Tribunals to be proactive by giving parties more freedom to choose and adopt the best practice for their individual situations. This will likely be more efficient and economical for everyone involved.
Illegal evidence (Article 9)
Article 9 now expressly states that the Arbitral Tribunal may exclude illegally obtained evidence on its own motion or at the request of a party. This new rule reflects the soft law status of the IBA Rules recognising that different jurisdictions may have their own laws on whether evidence is obtained illegally. The Review Task Force purposely left the rules flexible to ensure they are accommodating to parties in different jurisdictions and with different legal backgrounds.
The other changes are mainly intended to acknowledge prevailing practice or clarify specific points of interpretation. For example, Article 3.12 now expressly allows parties to respond to an objection to provide documents and to acknowledge that documents in response to a Request to Produce need not be translated, but that documents in a language other than the language of the arbitration must be translated.
To conclude, the 2020 revision of the Rules of Evidence follows the traditional approach adopted by the IBA, to only change and update what is necessary for good practice. The most notable change in the 2020 Rules of Evidence is the one concerning remote hearings. This is a welcome development considering all that has transpired in 2020 and, in any event, the movement toward more efficient delivery of arbitration services.
An IBA webinar taking a closer look at the rules can be viewed here.
 Subcommittee on Arbitration Guidelines and Rules IBA soft law products (Sept 2016), available at https://www.ibanet.org/LPD/Dispute_Resolution_Section/Arbitration/Projects.aspx.
 Commentary on the revised text of the 2020 IBA Rules on the Taking of Evidence in International Arbitration (International Bar Association, January 2021) at 3, available at https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx.