IBA published last month the revised Rules on the Taking of Evidence in International Arbitration. Our partner Mikal Brøndmo presents the three main changes in the 2020 revision. The article also includes a link to a compared version of the 2010 and 2020 Rules, and to the commentary to the 2020 Rules.

Main changes

1. Remote hearing

While experiences prior to Covid-19 were that some witnesses and experts participated in hearings remotely, experiences over the last year have shown that an increasing number of hearings are being held entirely remotely. The 2020 Rules are reflecting this key change within international arbitration. As an illustrative example the only new definition in the 2020 Rules is the definition of Remote Hearing, which includes hybrid hearings.

The 2020 Rules Article 8 is amended to provide expressly for remote hearings. Pursuant to new Article 8.2, the arbitral tribunal may, after consultation with the parties, order that the evidentiary hearing be conducted as a remote hearing. In that event, the arbitral tribunal shall establish a protocol on conducting such a remote hearing, including the elements listed in (a) to (e).

2. Cybersecurity and data protection

The new Article 2.2(e) handles the increasing need to ensure information security measures and compliance with personal data protection legislation. With electronic communication being the new normal, everyone involved in arbitration should consider how to deal with these issues. The new Article 2.2(e) requires tribunals to consult these issues with the parties at the earliest appropriate time in the proceedings and invite them to consult each other with a view to agreeing on how to handle these issues.

3. Exclusion of evidence obtained illegally

According to the new Article 9.3, the arbitral tribunal “may”, at the request of a party or on its own, exclude evidence obtained illegally.

As set out in the Commentary to the 2020 Rules from the IBA Task force for the revision of the Rules, national laws vary on whether illegally obtained evidence should be excluded from evidence in both criminal and civil court proceedings. Similarly, arbitral tribunals have reached different conclusions, depending on, among other things, whether the party offering the evidence was involved in the illegality, considerations of proportionality and whether the evidence is material and outcome determinative, whether the evidence has entered the public domain through public “leaks,” and the clarity and severity of the illegality.

The 2020 Rules seek to allow for this diversity by providing that the arbitral tribunal “may” exclude evidence under Article 9.3. This is in contrast to Article 9.2, where the tribunal “shall” exclude evidence where the grounds of Article 9.2 are present.

4. Clarifying the Rules

In addition to these three main changes, the Rules are clarified and thus aligned with best practise in some of the Articles. We will comment upon two of these amendments.

The first issue concerns requests for document production under Article 3. A party seeking to oppose entirely, or to limit a request to produce, must raise its objections in writing within the time ordered by the arbitral tribunal. In practice, arbitral tribunals frequently provide for replies to such objections. The 2020 Rules have added a final sentence to Article 3.5 providing for the requesting party to reply to any objection raised, if permitted by the arbitral tribunal.

The second issue concerns witness statements and expert reports in Article 4 and 5. The second round of witness statements and expert reports should only address information contained in witness statements, expert reports or other submissions that have not been previously presented in the arbitration, cf. Article 4.6 and 5.3. The 2020 Rules clarify that the second round may also address new factual developments that could not have been addressed in a previous witness statement or expert report.

Links

The IBA Rules on the Taking of Evidence in International Arbitration 2020 may be found here. The IBA has published a commentary to the 2020 Rules, which may be found here.

The IBA has also made a compared version of the 2010 and 2020 Rules on the Taking of Evidence in International Arbitration, which may be found here.