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The Revised IBA Rules on the Taking of Evidence in International Arbitration: Focus on Document Production and Privilege

Summer 2010
International Disputes Quarterly
Max Shterngel

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On May 29, 2010, the International Bar Association (the "IBA") officially adopted the IBA Rules on the Taking of Evidence in International Arbitration (the "Revised IBA Rules").1 Initially developed in 1999 by a Working Party of the IBA's Arbitration Committee,2 the IBA Rules were recently revised by a Rules of Evidence Review Subcommittee.3 After consultation with members of the original drafting team and following a public comment period, the Arbitration Committee submitted the Revised IBA Rules to the IBA Council and Legal Practice Division for approval in March 2010.4

The title of the Revised IBA Rules shows that the rules are for the "Taking of Evidence in International Arbitration" as opposed to "International Commercial Arbitration," the title of the previous version. The Revised IBA Rules are intended to apply to both investment and commercial arbitrations. Where parties agree to use the IBA Rules after May 29, 2010, whether in future or pending international arbitrations, the Revised IBA Rules shall apply.5

Revisions Concerning Documentary Evidence

The drafters of the Revised IBA Rules added several provisions addressing e-disclosure. The revised Article 3(3)(a)(ii), which outlines the requirements for a Request to Produce, allows a party requesting the production of electronic documents to "identify specific files, search terms, individuals or other means of searching for such documents in an efficient and economical manner."6 Article 3(12)(b), a new provision, provides that electronic documents "shall be submitted or produced in the form most convenient or economical to [the producing party] that is reasonably usable by the recipients…."7

The Revised IBA Rules include other revisions regarding the production of documents generally. Some of the more interesting revisions are:

  • Article 3.3 sets out the contents of a "Request to Produce". One such requirement, set out in Article 3.3(b), is that a "Request to Produce" must include a statement of the requested documents, relevance and materiality. The requirements set out in Article 3.3 have been incorporated into other articles of the Revised IBA Rules, including the grounds for objecting to document requests (Article 3(5)), rulings on document production by the tribunal (Article 3(7)) and document requests addressed to non-parties (Article 3(9)).8
  • Article 3(6) permits the tribunal to "invite the relevant parties to consult with each other" to resolve discovery disputes.9
  • Article 3(10) of the Revised IBA Rules allows an arbitral tribunal to proffer its own document requests to parties or to request that a party coordinate non-party production.10
  • Article 3(14) allows a tribunal, after consultation with the parties, to schedule the document requests and productions separately for each issue or phase of the arbitration (e.g., jurisdiction, liability or damages).11
  • Translations of documents must be identified as such, with an indication of the original language, and must be submitted together with the originals, pursuant to Article 3(12)(d).12
  • Article 3(13) provides an exception to the obligation for parties and the tribunal to keep documents confidential: "Disclosure may be required of a Party to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority."13
  • Any documents relied upon by fact or expert witnesses (whether party-appointed or tribunal-appointed) that have not otherwise been submitted are to be produced with witness statements or expert reports according to Articles 4(5)(b),
    5(2)(e), and 6(4)(c) of the Revised IBA Rules.14

Revisions Concerning Privilege

Article 9 of the Revised IBA Rules entitled "Admissibility and Assessment of Evidence" includes new provisions regarding "legal impediment or privilege." Article 9(3) provides that when construing applicable "mandatory legal or ethical rules," the tribunal may consider: (a) the need to protect attorney-client privilege; (b) settlement negotiations; (c) the "expectations of the Parties and their advisors" at the time the privilege purportedly arose; (d) waiver of privilege through such means as "consent, earlier disclosure, affirmative use… or otherwise"; and (e) "the need to maintain fairness and equality as between the parties, particularly if they are subject to different legal or ethical rules."15 The reference to "fairness and equality" appears in the original IBA Rules as one of seven grounds that may justify the exclusion of evidence by the tribunal. The revised Article 9(2)(g) adds "procedural economy" and "proportionality" as relevant considerations that may justify the exclusion of evidence.16 These additions provide arbitrators a flexible framework within which to equitably evaluate privilege claims so as to avoid any inequities due to disputes over privilege arising from conflicting national rules.

Article 9(7) introduces the notion of "good faith" into the evidentiary process in international arbitrations. The tribunal may consider a party's failure to "conduct itself in good faith in the taking of evidence" when assigning costs of the arbitration.17 Article 9(7) of the Revised IBA Rules makes clear that discovery abuses in international arbitral proceedings can invite the imposition of monetary penalties by an arbitral tribunal.

Conclusion

The Revised IBA Rules provide enhanced guidance on electronic document discovery, the role of the tribunal in document production and the considerations underlying privilege determinations. The new provisions are in line with current practice and are likely to be embraced by international arbitrators and practitioners alike.


1 - International Bar Association website, Arbitration Committee, IBA Announces Approval of Revised Evidence Rules, http://www.ibanet.org/Article/Detail.aspx?ArticleUid=AD2E4AFA-F3E5-4009-99BC-6745C8B97648 (accessed June 7, 2010). 
2 - Id.
3 - International Bar Association, IBA Rules on the Taking of Evidence in International Arbitration (May 29, 2010) ("Revised IBA Rules"), available at http://www.ibanet.org/Document/Default.aspx?DocumentUid=68336C49-4106-46BF-A1C6-A8F0880444DC (accessed June 7, 2010). 
4 - International Bar Association website, Arbitration Committee, IBA Announces Approval of Revised Evidence Rules, http://www.ibanet.org/Article/Detail.aspx?ArticleUid=AD2E4AFA-F3E5-4009-99BC-6745C8B97648 (accessed June 7, 2010). 
5 - Id.; see also Revised IBA Rules, art. 1(2)("Where the Parties have agreed to apply the IBA Rules of Evidence, they shall be deemed to have agreed, in the absence of a contrary indication, to the version as current on the date of such agreement."). 
6 - Revised IBA Rules, art. 3(3)(a)(ii). 
7 - Id., art. 3(12)(b).
8 - Id., art. 3(5), 3(7), and 3(9). 
9 - Id., art. 3(6). 
10 - Id., art. 3(10). 
11 - Id., art. 3(14). 
12 - Id., art. 3(12)(d). 
13 - Id., art. 3(13). 
14 - Id., arts. 4(5)(b), 5(2)(e), and 6(4)(c). 
15 - Id., art. 9(3). 
16 - Id., art. 9(2)(g). 
17 - Id., art. 9(7).


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