The framework for international arbitration is provided primarily by arbitration agreements, institutional rules and national laws.  Those sources, however, typically say little or nothing about rules of evidence or the process for presenting documents, fact and expert witnesses, discovery, and the conduct of the evidentiary hearing.  In the absence of agreement, the International Bar Association's ("IBA") Rules offer an efficient, economical and fair process for the taking of evidence.

Since their issuance in 1999, the IBA Rules on the Taking of Evidence in International Commercial Arbitration have gained widespread acceptance within the international arbitral community.  On May 29, 2010, the IBA adopted a revised version of the 1999 Rules:  the 2010 IBA Rules on the Taking of Evidence in International Arbitration. 

Like the 1999 Rules, the 2010 Rules recognize that expansive documentary discovery is usually inappropriate in international arbitration, and that requests for documents must identify with sufficient particularity the description, relevance, and materiality of each document or narrow category of documents.  The 2010 Rules also preserve the arbitral tribunal's power to determine the admissibility, relevance, materiality and weight of evidence; to exclude evidence for specified reasons; and to make adverse inferences if a party fails without satisfactory explanation to produce any evidence that the tribunal has ordered be produced.

Significant new and amended provisions include:

  • Article 2.1 requires the tribunal to consult the parties to set an efficient, economical and fair process for the taking of evidence.
  • Article 2.2 allows the tribunal to consult the parties regarding scope, timing and manner of taking evidence, including documents, witness statements and expert reports, oral testimony at any hearing, and confidentiality protection to be afforded to evidence in the arbitration.
  • Article 2.3 encourages the tribunal to identify to the parties issues that are relevant to the case and material to its outcome, and/or for which a preliminary determination may be appropriate.
  • Article 3.3(a) allows requests to identify specific files, search terms, individuals or other means of searching for electronic documents in an efficient and economical manner.
  • Article 3.12(b) allows a party to submit or produce documents in an electronic form that is most convenient or economical to it, and that is reasonably usable by the recipients.
  • Article 3.14 allows the tribunal to schedule document submissions and requests separately for each issue or phase, if the arbitration is organized into separate issues or phases (such as jurisdiction, preliminary determinations, liability or damages).
  • Article 9.3 lists criteria that the tribunal may take into account in determining whether a legal impediment or privilege justifies exclusion of evidence.
  • Article 9.7 allows the tribunal to take a party's failure to conduct itself in good faith in the taking of evidence into account in assigning costs of the arbitration, including costs related to the taking of evidence.

Though modest, the revisions to the IBA Rules help to adapt the arbitral system to technological developments and the demands of its users.  The parties and tribunal are empowered to adopt the Rules in whole or in part, in the arbitration agreement or after the proceeding commences, or to use the Rules as guidelines, thus reinforcing one of the main advantages of arbitration—procedural flexibility. 

The rules of evidence can change the outcome of litigation and almost always will change the valuation of a case.  The IBA Rules are a useful resource to assist parties in the conduct of international arbitration.  The Rules reflect common practices used in international arbitration that harmonize civil and common law approaches to dispute resolution.  Users of international arbitration should consider selecting IBA Rules in their arbitration clause or adopting the Rules once arbitration proceedings commence.

Practical Tip 

Consider including a clause in your arbitration agreement that selects the rules of evidence to apply in the event of a dispute.  Principal concerns include whether and to what extent to allow oral and documentary discovery.  Whereas U.S. court rules allows extensive discovery, typical practice in international arbitration is to allow relatively far less discovery.  This practice is reflected in the IBA Rules on the Taking of Evidence in International Arbitration.

To adopt the IBA Rules in your arbitration clause, add the following language to the clause:

The parties agree that the arbitration shall be conducted according to the IBA Rules of Evidence as current on the date of this agreement. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.