New IBA rules on 2020 international arbitration: updates concerning remote hearings, cybersecurity, expert reports or witness statements
The International Bar Association (IBA) approved, on December 17, 2020, the revised IBA Rules on the Taking of Evidence in International Arbitration (‘IBA Rules 2020’), finally published on February 17, 2021. The revised rules have been updated on matters related to remote hearings, cybersecurity, docent production, witness statements and expert reports, appointment of experts, cross-examination or the admissibility of evidence.
The primary aim of this revision was to (i) clarify and refine a few provisions causing doubts over the conduct of proceedings; (ii) include cybersecurity prevention and data protection measures; (iii) allow the exclusion of evidence obtained illegally and (iv) bring the IBA Rules into step with the new scenario that has emerged following COVID-19, in which remote hearings have, with great success, replaced in-person hearings.
These key updates are analyzed below:
1. Remote hearings. The IBA Rules 2020 include a definition of ‘Remote Hearing’ and in article 8(2) note the need to design a protocol if the parties choose to conduct a remote hearing. This protocol may address the technology to be used in the hearings, the advance testing of the chosen technology, the starting and ending times for the hearings, how documents may be placed during the hearings or the measures to be adopted to ensure that witnesses are not being influenced during hearings.
This section has added to the IBA Rules 2020 a practice that has been imposed by COVID-19 and brings advantages such as time and cost savings or avoiding the need to travel where witnesses, arbitrators and lawyers are based in different countries.
2. Cybersecurity. Article 2 of the IBA Rules 2020 includes cybersecurity and data protection among the evidentiary issues to be discussed by the parties with the arbitral tribunal at the start of the proceedings.
We have been seeing increasingly tighter restrictions on the disclosure of sensitive data of companies and individuals. The addition of this letter e) to article 2 of IBA Rules 2020 is designed for measures to be taken to prevent the disclosure of protected data in the arbitration proceeding and for security protocols to be put in place to reduce the chance of third parties outside the arbitration proceeding gaining access to confidential data in cyberattacks.
3. Document production. Article 3 of the IBA Rules 2020 expressly allows the party requesting the production of documents to respond to objections to that request submitted by the other side, which is a widely adopted practice in international arbitration. Additionally, a number of clarifications are provided on document production importantly the distinction in letters (d) and (e) of article 3.12, clarifying that documents produced by one party in response to a request by the other do not have to be translated; whereas documents submitted to the arbitral tribunal must be accompanied by translations to the language of the arbitration.
4. Witness statements and expert reports. Articles 4 and 5 introduce an amendment relating to witness statements and expert reports which allows the parties to submit in a second round of submissions, new witness statements or expert reports to respond to facts or matters that were not known when the first statements or reports were submitted.
5. Appointment of experts. An amendment to Article 6 on tribunal- appointed experts deleted the following sentence: “The authority of a Tribunal-Appointed Expert to request such information or access shall be the same as the authority of the Arbitral Tribunal”. The task force concluded that this authority could be misinterpreted to suggest that the tribunal-appointed expert may also resolve any disputes over the nature of the information or access to it, which are matters to be decided by the arbitral tribunal.
6. Cross-examination. Article 8, besides giving the power to design a protocol if hearings are conducted remotely, introduces in section 5, the power of the arbitral tribunal to permit cross-examination even if not expressly requested by the other side. This clarifies the doubts that arose where the other side did not request cross-examination of a witness.
7. Admissibility of evidence. Lastly, in article 9 the IBA Rules 2020 add, in section 3, the power of the arbitral tribunal power, on its own motion or at the request of a party, to exclude evidence obtained illegally from the proceeding. Although this might seem an obvious restriction, the fact is evidence might have been obtained illegally under the law of one country (a recording without permission, for example) and legally under the law of another country. For that reason, the IBA Rules 2020 give the arbitral tribunal the power to decide over the admissibility of this evidence.
This is the third version of the IBA Rules following the first set of Rules adopted on June 1, 1999 and their later revision on May 29, 2010. In June 2015, the IBA Committee conducted a worldwide survey to determine the degree of acceptance of the IBA Rules on the Taking of Evidence –as well as of other guidelines and rules produced by the institution–. The results were analyzed in the Report on the reception of the IBA arbitration soft law products published in 2016 which noted that the 2010 rules were used often by the international arbitration community, although a few provisions needed to be clarified to improve their use and acceptance. A task force was therefore created in charge of revising the IBA Rules 2010 which has now resulted in the approval, on December 17, 2020, of the IBA Rules 2020.
The IBA Rules 2020 will apply, unless agreed otherwise, if the agreement by the parties to apply them takes place after December 17, 2020, regardless of whether the arbitration had commenced earlier.