IBA Rules on Taking of Evidence

The International Bar Association one of the leading organisations of international legal practitioners, bar associations and law societies in the world, recently approved a new version of its Rules on the Taking of Evidence in International Arbitration. These superseded the earlier rules published in 1999. The IBA Rules are often adopted by parties to international commercial arbitrations to govern procedures regarding expert statements, witnesses and other forms of evidence.

The Working Party consisted, among others, of distinguished scholars such Emmanuel Gaillard and Jan Paulsson to name a few.

The new Rules have a wider scope than the 1999 Rules on Taking of Evidence in International Commercial Arbitration, by deletion of the word "commercial"; these rules may now be applied in investment arbitrations as well.

The principle of good faith is firmly entrenched in these rules by an express reference to the same in the Preamble and Article 9, regarding admissibility of evidence.

An obligation is cast upon the tribunal, by virtue of Article 2, to consult parties on taking evidence with a view to agreeing on an efficient, economical and fair process for the same.

Updating itself with technological advancement, the Rules also give details regarding electronic forms of documents in Article 3. Similarly, Article 8 of the new rules provide for video-conference and similar technology.

Greater confidentiality is provided to documents produced, whether by parties, or on request. This can be seen by reference to confidentiality in various provisions of the rules.

Articles 5 and 6 contain important new provisions regarding party-appointed and tribunal-appointed experts, whose independence from the parties and the tribunal is stressed.