On February 15, 2021, the International Bar Association (“IBA”) released an update to its highly influential Rules on the Taking of Evidence in International Arbitration (“IBA Rules”). The IBA Rules are a mix of common law and civil law traditions, and serve as the ground rules for discovery and the treatment of evidence in a majority of international arbitrations. Tribunals and parties frequently include reference to the IBA Rules in their Terms of Reference, and rely on the IBA Rules to decide evidentiary disputes between the parties.
The changes to the rules are described in depth in an IBA Commentary, but the IBA left many of the core provisions regarding document exchange unchanged. Indeed, many of the changes simply bring the new IBA Rules in line with modern international arbitration practice, such as advocating that the tribunal address cybersecurity and data protection with the parties in an initial conference (Article 2), allowing a reply in response to an objection to producing documents (Article 3), allowing witnesses and experts to address new factual developments in reply statements (Articles 4 & 5), allowing for hearings to be held remotely (Article 8), and excluding illegally obtained evidence (Article 9).
The updates to the IBA Rules mainly help to clarify and modernize rules that were first adopted in 1999 and last updated in 2010. Given their frequent use by parties and tribunals, the newly updated IBA Rules will likely guide the use of evidence in international arbitrators over the course of the next decade.