IBA Rules 2020: New trends in international arbitration
As recently as February 2021, the International Bar Association (“IBA”) released a revised version of its Rules on the Taking of Evidence in International Arbitration (“IBA Rules”). As is well known, the stated purpose of the IBA Rules is to provide “a resource to parties and to arbitrators to provide an efficient, economical, and fair process for the taking of evidence in international arbitration […] in conjunction with, and adopted together with, institutional, ad hoc, or other rules or procedures governing international arbitrations. The IBA Rules of Evidence reflect procedures in use in many different legal systems, and they may be particularly useful when the parties come from different legal cultures.

While the IBA Rules were originally issued in 1999 and first revised in 2010, in February 2021 an updated version was issued, with the purpose of providing a modernized version “designed to supplement the legal provisions and the institutional, ad hoc, or other rules that apply to the conduct of the arbitration.

The newly released version is designed with an eye to current trends and developments in international arbitration. Among the most notable results of these edits is that, unlike the previous version of the IBA Rules, this version addresses at length topics that became of particular interest during the COVID-19 pandemic: remote hearings and the related need to maintain confidentiality in arbitration proceedings via cybersecurity and data protection.[1]

Remote hearings

As has been widely discussed,[2] one of the hot topics after COVID-19 broke out was whether and how to conduct hearings remotely. This was particularly impactful in the context of arbitration proceedings where, as is widely acknowledged, confidentiality plays an important role in stakeholders’ eyes.

In line with the aim of filling in procedural gaps in arbitration proceedings and reflecting real-world needs for development and input, the IBA Rules in their latest edition specifically address such matters for the first time. They do so first by offering a definition of a virtual hearing, described as “a hearing conducted, for the entire hearing or parts thereof, or only with respect to certain participants, using teleconference, videoconference, or other communication technology by which persons in more than one location simultaneously participate.” Within that framework, Section 8 of the IBA Rules (“Evidentiary hearing”), para. 2, now provides that, upon request of a party or at its own initiative, the arbitral tribunal may order that an evidentiary hearing[3] be conducted via remote hearing. In that case, the parties are invited to consult and establish a protocol governing remote hearing(s), which may address: (a) the technology to be used; (b) advance testing of the technology or training in use of the technology; (c) the start and end times, with the time zones in which participants will be located taken into consideration; (d) how documents may be placed before a witness or the arbitral tribunal; and (e) measures to ensure that witnesses giving oral testimony are not improperly influenced or distracted.

Cybersecurity and data protection

Following the official introduction of virtual hearings into the IBA Rules, the need to address cybersecurity and data protection during arbitration inevitably increased. The drafters of the IBA Rules promptly reacted and met that need by establishing, in Section 2 (“Consultation on evidentiary issues”), para. 2, that to the extent possible, the arbitral tribunal shall consult the parties on the handling of any cybersecurity and data protection issues, among other aspects.

Conclusions

The above are just a few of the recent edits to the IBA Rules, but they paint a clear picture of the fact that, as many authors and scholars predicted, the arbitration world promptly reacted to the pandemic and, more generally, to modernization by relying heavily on technological solutions.

The IBA Rules mirror this reality and provide a glimpse of what appears to be a promising development in international arbitration.

[1] Additional revisions include clarification on the admissibility of witness experts or witness statements and on evidence as well as on the production of documents.

[2] Here are our previous contributions on this topic: https://portolano.it/newsletter/portolano-cavallo-inform-litigation-arbitration/covid-19-the-prompt-reaction-of-the-arbitration-world; https://portolano.it/newsletter/portolano-cavallo-inform-litigation-arbitration/virtual-hearings-in-the-context-of-the-vis-moot-real-solutions-to-a-fictional-problem.

[3] For the purpose of the IBA Rules, an evidentiary hearing is defined as “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.”

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