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Revision of the International Bar Association (IBA) Rules 2020
On December 17, 2020, the International Bar Association (“IBA”), an organization for international bar associations and lawyer councils, adopted its revised Rules on the Taking of Evidence in International Arbitration. The new Rules were published on February 17, 2021, and will apply to all arbitrations in which the parties agree to apply the IBA Rules after December 17, 2020 [1]. The IBA Rules are revised to reflect changes in international arbitration practice. It explains different sections in greater detail and addresses the “New Normal” with remote and virtual judicial hearings.
The Objective of the IBA Rules on the Taking of Evidence in International Arbitration
The IBA Rules on Taking of Evidence in International Arbitration is a legal instrument that consists of nine articles. The IBA Rules were first introduced in 1999 and united the perspective and practical procedures for obtaining evidence in an international arbitration between countries with common law and civil law systems. The Rules aim to provide an efficient, cost-effective, and fairness to the parties in the evidence-gathering process in international arbitration [2].
The Revision of the 2020 Rules
The 2020 revision focuses on the following points :
1.Cybersecurity, Data Protection, and Confidentiality
Article 2 addresses cybersecurity and data protection issues during early consultation between the parties and the Arbitral Tribunal.
In the revised Article 2, additional precautions and remedies for cybersecurity and data protection are addressed [3]. These two issues have received prominent attention during the past years as there was the enactment of General Data Protection Regulation in the EU and other applicable data protection regimes such as the ICCA-NYC Bar and CPR Protocol on Cybersecurity in International Arbitration.
Article 9 Extending of Confidentiality Over the Evidence
The revision in this Article has included the authority of the Arbitral Tribunal to exclude illegally procured evidence such as wiretapping or recording without consent [4].
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2. Virtual and Remote Evidentiary Hearings
Article 8 The Remote Evidentiary Hearing
This revision added virtual hearing and the definition of a remote hearing to reflect on the “New Normal” and the “technological transition” occurrence during Covid-19.
3. Documents
Article 3 Documents
The amendment in Article 3 includes the objection of the document. The party to whom the Request to Produce is addressed to may respond if the Arbitral Tribunal orders. This means the party may have the right to reply to the objection from the relevant counterparty in response to a Request to Produce [5].
Furthermore, there is a revision on the translation of the document. For that documents to be produced to another Party in response to a Request to Produce are not required to be translated while foreign-language Documents submitted to the Arbitral Tribunal are required to be translated [6].
4. Tribunal Power/ Authority
Article 6 The Authority Person
The revision in Article 6 is a correction of wording that may cause misinterpretation in Article 6.3 by clarifying that a tribunal-appointed expert will not have the power to resolve any disputes between the parties over information or access to information.
Article 9 The Refusal of Illegally Obtained Evidence
It gives explicit power to refuse to listen to unlawfully procured evidence.
Sources:
- https://www.acerislaw.com/revised-2020-iba-rules-on-taking-evidence-in-international-arbitration/
- https://www.clearygottlieb.com/-/media/files/alert-memos-2021/2020-revision-of-the-iba-rules-on-the-taking-of-evidence-in-international-arbitration.pdf
- https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx#Practice
- https://hsfnotes.com/arbitration/2021/02/19/publication-of-new-iba-rules-2020-key-updates/
- https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=137D2AB8-DB09-42AE-A19B-FC31AED914AE
- https://globalarbitrationnews.com/revised-iba-rules-2020/
- [1] For those who interested in further information, please visit https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx
- [2] https://www.clearygottlieb.com/-/media/files/alert-memos-2021/2020-revision-of-the-iba-rules-on-the-taking-of-evidence-in-international-arbitration.pdf
- [3] IBA Rules 2020 Article 2.2(e)
- [4] IBA Rules 2020 Article 9(3)
- [5] IBA Rules 2020 Article 3.5
- [6] IBA Rules 2020 Articles 3.12(d) and (e)
