Clifford Chance

IBA updates rules on evidence in International Arbitration

23 March 2021

The IBA's updated rules on evidence address major developments and challenges arising from the COVID-19 pandemic and the modern age of cybersecurity threats.

The IBA Rules on the Taking of Evidence in International Arbitration ("IBA Rules") were published in 1999, and updated in 2010, and have the intention of providing a common framework for the main evidential issues that arise in international arbitration, balancing common law and civil law traditions. Since then, they have often been adopted by parties and tribunals, mostly as guidance in determining evidential matters rather than mandatory rules. Their great advantage is that such adoption provides a transnational approach and avoids arguments about the applicability of evidential rules of the lex fori and other potentially applicable sources of rules.

The IBA has undertaken a review of the IBA Rules and on 15 February 2021 published an updated version (adopted by the IBA Council on 17 December 2020).

The update leaves unchanged many of the provisions dealing with factual and expert evidence, document production, and grounds for withholding production. The update does contain a number of key additions that have been designed to reflect contemporary practices in international arbitration and the challenges posed by new technologies. In particular, it addresses major developments and challenges arising from the COVID-19 pandemic and the modern age of cybersecurity threats.

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