By Ariel Ye, Partner, Dispute Resolution, King & Wood Beijing *

In a recent session held May 29, 2010, the International Bar Association (the “IBA”) Council approved the 2010 revision to the IBA Rules on the Taking of Evidence in International Arbitration (the “Rules”).

Overview – The previous version of the Rules in effect was the 1999 version, which was adopted by the IBA Council on June 1, 1999, and replaced the 1983 IBA Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration. Noting the wide acceptance of the Rules in the international arbitration community and the need for reflecting the latest developments in international arbitration, the IBA initiated a review process in 2008. The revised version of the Rules was developed by the members of IBA Rules of Evidence Review Subcommittee, assisted by members of the 1999 Working Party.

Purpose – The Rules were issued to provide a fair and efficient process for the taking of evidence in international arbitration. The Rules provide mechanisms for the presentation of documents, witnesses of fact and expert witnesses, inspections, as well as the conduct of evidentiary hearings. The Rules are designed to be used in conjunction with, and adopted together with, institutional, ad hoc or other rules or procedures governing international arbitrations. They reflect procedures in use in many different legal systems and may be particularly useful when the parties come from different legal cultures.

Revisions – The 2010 revision to the Rules is a full-scale one, through which the Rules, whilst maintaining those fundamental characters, refined some important terms and / or mechanisms, including without limitation:

  • Definition of “Document”: compared with the definition in the 1999 version, the updated one is more “open”, saying “Document means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means.”
  • Definition of “Evidentiary Hearing”: similar to the situation with “Document”, the updated one here enriches the methods that can be adopted in evidentiary hearing in international arbitration, saying “Evidentiary Hearing means any hearing, whether or not held on consecutive days, at which the Arbitral Tribunal, whether in person, by teleconference, videoconference or other method, receives oral or other evidence.”
  • Definition of “Request to Produce”: unlike the above two terms, the updated one here overwrites the idea in the previous one, saying “Request to Produce means a written request by a Party that another Party produce Documents.” The 1999 version defines it as “a request by a Party for a procedural order by which the Arbitral Tribunal would direct another Party to produce documents.” Obviously, the arbitral tribunal’s role in the stage of request to produce becomes less active under the 2010 version.
  • “Consultation on Evidentiary Issues”: this term entitles a new Article 2 that is created in the 2010 version of the Rules. As is explained in paragraph one of this article, under this “consultation” mechanism the arbitral tribunal “shall consult the Parties at the earliest appropriate time in the proceedings and invite them to consult each other with a view to agreeing on an efficient, economical and fair process for the taking of evidence.”
  • Content of a “Request to Produce”: corresponding to the definition of this term mentioned above, in Article 3 of the 2010 version, the respective rule is supplemented as for the situation where Documents in electronic form is required, saying “…. in the case of Documents in electronic form, the requesting Party may , or the Arbitral Tribunal may order that it shall be required to identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner.
  • “Good faith”: some may consider that this “good faith” rule is so established in almost every single jurisdiction that it is unnecessary here in the Rules. However, it is mentioned twice in the 2010 version, interestingly at the beginning and the ending thereof: (i) in paragraph 3 of the Preamble, it says “The taking of evidence shall be conducted on the principles that each Party shall act in good faith and be entitled to know, reasonably in advance of any Evidentiary Hearing or any fact or merits determination, the evidence on which the other Parties rely.” (ii) in paragraph 7 of Article 9, it says “If the Arbitral Tribunal determines that a Party has failed to conduct itself in good faith in the taking of evidence, the Arbitral Tribunal may, in addition to any other measures available under these Rules, take such failure into account in its assignment of the costs of the arbitration, including costs arising out of or in connection with the taking of evidence.”

* Ms. Ye, head of the firm’s international dispute resolution practice, was privileged to participate in the review process of the Rules as a member of the IBA Rules of Evidence Review Subcommittee, and sincerely congratulates the IBA on this momentous move.