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The IBA Rules on the Taking of Evidence in International Arbitration

A Guide
Peter Ashford
Book DOI: http://dx.doi.org/10.1017/CBO9781139424714
Online ISBN: 9781139424714
Hardback ISBN: 9781107032170
Chapter
Article 2 - Consultation on Evidentiary Issues pp. 31-40
Chapter DOI: http://dx.doi.org/10.1017/CBO9781139424714.008
Cambridge University Press
arti cl e 2
Consultation on Evidentiary Issues
1 he Arbitral Tribunal shall consult the Parties at the earliest

appropriate time in the proceedings and invite them to consult each other with a view to agreeing on an ecient, economical and fair process for the taking of evidence.
2 he consultation on evidentiary issues may address the scope,
timing and manner of the taking of evidence, including:
(a) the preparation and submission of Witness Statements
and Expert Reports;
(b) the taking of oral testimony at any Evidentiary Hearing;
(c) the requirements, procedure and format applicable to the
production of Documents;
(d) the level of condentiality protection to be aorded to
evidence in the arbitration; and
(e) the promotion of eciency, economy and conservation of
resources in connection with the taking of evidence.
3 he Arbitral Tribunal is encouraged to identify to the Parties,
as soon as it considers it to be appropriate, any issues:
(a) that the Arbitral Tribunal may regard as relevant to the
case and material to its outcome; and/or
(b) for which a preliminary determination may be appropriate.
i b a com m i t tee com m enta ry
he 2010 revisions include the addition of a new Article 2. he
Subcommittee carefully considered whether and how the IBA Rules
should be adapted or expanded in response to the increased size and complexity of arbitrations and the evidentiary issues associated with them.
31
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32
Article 2: Consultation on Evidentiary Issues
After review of various sets of domestic and international arbitration rules

and procedures, the Subcommittee agreed on a meet and consult approach.
Article 2.1 provides for a mandatory consultation between the arbitral
tribunal and the parties at the earliest appropriate time in the proceedings. Under normal circumstances, this consultation would coincide with
a procedural conference or exchange of views early in the proceedings.
Early timing allows the participants to organise the taking of evidence in
an ecient, economical and fair manner. Where the evidentiary issues are
not considered to be suciently clear at an early stage in the arbitration,
the arbitral tribunal might postpone such conference or exchange.
he issues which may be appropriate for discussion at the Article
2.1 consultation include, but are not limited to, those enumerated in
Article 2.2. While Article 2 provides a framework for discussing evidentiary issues, it is not intended to prescribe how evidence should be taken
in any particular arbitration. For example, in any given arbitration the
arbitral tribunal and the parties may determine not to require disclosure
of electronic evidence. On the other hand, if they determine that taking
evidence in electronic form would be conducive to the ecient, economical and fair taking of evidence, it may be advisable to discuss the related
details at an early stage, such as the form of production (Article 3.12(b))
and the formulating of requests to produce by identifying specic les,
search terms, individuals or other means for searching for documents in
an ecient and economical manner (Article 3.3(a)(ii)).
Article 2.2(e) encourages discussion of means to save time and costs in
the arbitration. It also refers to the conservation of resources in connection of the taking of evidence, which could include, by way of example,
the economic and environmental costs of travel or document reproduction
(including by submitting documents using web-based platforms such as
NetCase, the platform of the ICC).
Article 2.3 (formerly paragraph 3 of the Preamble) encourages arbitral
tribunals to identify to the parties, as early as possible, the issues that
they may regard as relevant to the case and material to its outcome. hat
paragraph also notes that a preliminary determination of certain issues
may be appropriate. While the Working Party did not want to encourage litigation-style motion practice, the Working Party recognised that in
some cases certain issues may resolve all or part of a case. In such circumstances, the IBA Rules of Evidence make clear that the arbitral tribunal
has the authority to address such matters rst, so as to avoid potentially
unnecessary work.
Particular Words and Phrases
33
pa rti cul ar wo rds a nd phras es

earliest appropriate
time
he consultation by the tribunal with the

parties should be no later than at the rst
procedural meeting and should ideally
be in the run-up to such meeting. he
invitation that the tribunal is mandated
to extend (see below) should, ideally, be
before the consultation that the tribunal will have with the parties and to that
extent the apparent order of events in
Article 2(1) should be reversed with the
tribunal inviting the parties to consult
and then, ideally, consulting with the
parties on what the parties have agreed or
on those areas that they have agreed and
not agreed.
invite them to con- Consistent with the rights of autonomy
sult each other
that the parties have, they should properly consult with each other over procedural matters. he true extent of that
autonomy may well be more limited than
perhaps thought see the discussion
below. he diculty with consultation is
that it occurs at a time when the parties
are at daggers drawn. he invitation
needs to be clear and to make it clear
that absent a reasonable agreement by the
parties, meeting the availability and aims
of the tribunal, the tribunal will impose
directions upon the parties.
ecient, economical hese words, perhaps unnecessarily, echo
and fair process
the words of the preamble but their
importance is such that repetition can be
forgiven.
34

di s cu ss io n
[2-1] Article 2 is a new and important addition to the Rules. his

article proposes, indeed requires, early case-management consultation to agree how evidence should be taken in an ecient, economical and fair manner. his change (to a mandatory consultation) is
also reected in the new ICC Rules where Article 24 provides that
an arbitral tribunal shall convene a conference to consult with the
parties on procedural matters when drawing up Terms of Reference
or as soon as possible thereafter. his presents an opportunity for the
parties, their counsel and the arbitral tribunal to meet. It is hoped
that the opportunity will be rmly grasped and a real dialogue take
place both before and during the meeting. It presents a real opportunity for the parties to craft a procedure that is t for the particular purpose of a particular dispute. Agreement and eciency are to
be regarded as the essential aspects of the consultation. Parties and
the arbitral tribunal should not let counsel suggest standard timetabling directions. hey should be challenged and made to justify
any step that does not have the appearance of promoting eciency,
economy and fairness. Arbitral tribunals should strongly encourage
senior representatives of parties to attend so that there can be no
doubt that the parties themselves favour a procedure that might be
slower or more expensive than it might be. he Article strikes a neat
balance between the immediate and directional involvement of civil
law tribunals and the party-autonomy of common law adversarial
systems.
[2-2] he consultation envisaged by the Article is between the arbitral tribunal on the one hand and the parties on the other but importantly it anticipates that the parties will be invited or encouraged to
discuss and agree matters between themselves. his is consistent with
the Kompetenz Kompetenz doctrine of party autonomy. If the parties agree upon a manner or method of taking evidence the arbitral
tribunal are likely to agree and make a procedural order in the terms
of the parties agreement but there is no guarantee (under the Rules)
that will be the case. Under the UNCITRAL Model Law (Article
19(1)) and new ICC Rules (Article 22) party autonomy is regarded as
sacrosanct but the same is not the case under the LCIA Rules (Article
Discussion
35
14) nor the AAA Rules (Article 16). he remainder of this discussion
assumes any institutional rule is not inconsistent with the Rules.
[2-3] Article 2 directs specic attention to a number of matters
that the arbitral tribunal and the parties might consider. In each
case the consultation is directed to the scope or extent (necessarily including whether such a step is, on the particular facts of the
case, appropriate at all), timing (both in sequence i.e. what is consecutive to what and interval i.e. what time is required after one
step before the next) and manner (i.e. how compliance is to be
achieved). As discussed above any concept of a standard direction
should be banished for it is only by crafting a bespoke procedure
that it can be both t for purpose and achieve the aim of saving
time and cost.
[2-4] In practical terms the consultation by the arbitral tribunal is
likely to be both before and at the rst procedural meeting. he arbitral tribunal is likely, in xing the meeting, to invite the parties to
consult and to submit draft agreed orders to the tribunal.
[2-5] he rst item specically contemplated is witness statements.
By listing the preparation and submission of witness statements as
an issue for consultation, the Rules appear to assume that such statements are an ecient, economical and fair tool and the presence
of Article 4 (and specically Article 4.4) reinforces the point. In any
event witness statements have become standard practice and they generally establish a sound platform for an ecient witness-examination
process, particularly by replacing the examination-in-chief, enabling
the scope and extent of the cross-examination to be pre-planned and
dened by the opposing counsel such that there can be a smooth
ow of the evidence and without the need for frequent adjournments for cross-examination or rebuttal. However, the admission of
written witness statements has a number of consequences, including
intensive contacts between counsel and the witness and the necessity of granting the opposite party the opportunity to cross-examine
the witness. hese are features that may not be appropriate or useful
in every case. For example, where parties and counsel involved are
exclusively from civil-law jurisdictions, they may prefer not producing written statements and having the questioning of the witnesses
36
done primarily by the arbitrators. Depending on the subject matter

of the oral testimony and other circumstances, this may in a particular case constitute a more ecient, economical and fair approach.
[2-6] It should be noted that the suggestion in Article 2 to consult on the preparation and submission of witness statements by no
means precludes the option of proceeding without such statements.
Indeed, the Rules provide in Article 4.4 that the arbitral tribunal
may order each party to submit within a specied time witness
statements by each witness on whose testimony it intends to rely,
thus acknowledging that one size might not t all.
[2-7] Where written statements are to be submitted, the
case-management consultations should address the question of
whether the witness statements should be submitted together with the
parties memorials on the merits or only after the exchange of memorials has been completed. Civil-law lawyers often prefer the rst option
while common-law lawyers favour the second. he advantage of the
rst option is that the witness statements are, or at least should be,
generally closely related to that partys memorial, supporting or proving the contentions of fact made in the memorial. In addition, such
a structure also avoids additional procedural steps after the exchange
of the memorials and can lead to an abridged timetable. It does, however, front-load costs by requiring a lot of costs to be incurred at an
early stage. hose costs themselves can become a barrier to settlement
and be contrary to the stipulation of saving time and cost.
[2-8] he advantage of the serving statements after memorials
(assuming the memorials themselves are sequential) is that the statements can address only that which is contested and can focus on
the areas of real contention. If memorials are exchanged simultaneously an interval before witness statements are exchanged can be an
opportunity for settlement and to informally or formally resolve any
issues as to exactly what case a party is advancing. Furthermore, the
statements (and any rebuttal statements) are submitted or exchanged
simultaneously and thus neither party has the last word.
[2-9] However, witness statements submitted after the exchange of
memorials can go far beyond what was stated in the memorials, and
seek to serve as a further full pleading, or are used as such when they
are accompanied by evidentiary documents not yet on the record.
Discussion
37
Such situations may then trigger additional pre-hearing submissions

by the parties which can disrupt the procedural timetable.
[2-10] Much the same considerations apply to expert evidence in
terms of timing (with or after memorials) and sequence. It is generally accepted that experts reports should be submitted after all of the
factual evidence has been submitted. his need not necessarily be so
but if the facts are likely to have any bearing on the expert opinion it
is essential that the expert can consider the possible range of factual
ndings that the tribunal might make and either express a range of
opinion or series of alternatives depending on what factual ndings
might be made.
[2-11] he taking of oral testimony at an evidential hearing will
be dictated principally by whether witness statements have been
directed. If so, there may be an additional direction that the statements stand as the evidence in chief and in eect the witness is called
and tendered for cross-examination (and then re-examined). If there
are no witness statements the witnesses will have to give evidence
in chief and then be cross-examined. If the parties and / or counsel
have a civil law bias the tribunal may be expected to question the
witnesses but this is becoming increasingly rare.
[2-12] he real issue for the taking of oral evidence is likely to be
the division of time at the evidentiary hearing. Normally there is
consensus that the time should be split equally but that need not be
the case especially if one party carries a heavy burden of proof. he
split can be relatively informal and be reckoned in portions of days or
there can be a more chess-clock approach with precise division.
[2-13] It is generally recognised that witness statements are prepared
with the assistance of counsel for the party that wishes to present the
witness. here is a continuing debate regarding how far the contact
and co-operation between counsel and witness may go. his is less
so with respect to the drafting of the written statements as such, but
more so as regarding the subsequent oral testimony. See the discussion under Article 4.
[2-14] Issues of document production and condentiality are discussed under Articles 3 and 9 respectively but it might well be appropriate to direct that contested document requests are dealt with by
38
Redfern schedule1, rather than let requests get out of hand and only
later try to bring the discipline of a Redfern schedule to the process.
[2-15] he promotion of eciency, economy and conservation of
resources is something that ought to challenge an arbitral tribunal.
Arbitral tribunals will have relatively limited knowledge of the facts
and issues at this early stage of the proceedings. he parties will be
far better informed and may well have agreed directions (or at least
counsel for the parties may have done so). Tribunals would be well
advised to encourage the attendance of the parties themselves (and at
a suitably senior decision-making level), should politely and rmly
challenge any procedure that seems to them to be unnecessary or
excessive and counsel should be asked to give costs budgets for particular stages and to budget alternatives. he parties themselves might
not have been given the option of some alternatives and a procedure
should only be adopted and ordered when the full implications of
the time and cost consequences are appreciated.
[2-16] One matter that might be discussed under Article 2.2(e)
is to create an arbitration hold. he provision encourages parties
to consult with each other as early as possible regarding document
production, emphasising the promotion of eciency, economy, and
resource conservation. Because the destruction of documents in the
absence of an arbitration hold would likely contravene these principles, the provision may serve as a basis to provide for such a hold.
In light of decisions in the U.S., U.K. and other jurisdictions dening the requirements for a litigation hold, arbitrators may increasingly expect practitioners to apply the concept in arbitral disputes.
Dierences in culture and the legal backgrounds of the parties will
necessarily result in dierent perceptions of what should be preserved
and tribunals are likely to have to allow for these dierences before
considering any stipulation, still less any sanction.
[2-17] Parties (and counsel) are likely to have widely varying expectations regarding preservation. It is obviously easier to meet demanding standards for preservation where there is a culture of document
retention. U.S. companies, or those with signicant U.S. operations,
accustomed to frequent litigation will be well aware of the reasonable
1
See the discussion at [32].
Discussion
39
expectation standard and will generally have comprehensive document retention policies. his issue does not only aect companies
that operate exclusively in countries lacking a document retention
tradition. Even large multinationals may nd themselves in dicult
situations due to inconsistent policies. For example, in Zubulake2,
the court showed no sympathy for UBS argument that some of the
missing backup tapes were deleted after a month because they were
held by an employee in the Hong Kong oce, which had a dierent
preservation policy.
[2-18] hough in Zubulake the court failed to accept UBS invocation of cultural dierences, such an approach may well nd favour
with international tribunals. International arbitrators dealing with
international parties are far more likely to consider the parties
expectations based on their cultural dierences than would a domestic judge addressing a largely domestic dispute.
[2-19] Again due to the relatively limited information available
to the arbitral tribunal it may have limited scope for suggesting
or directing issues or matters that might be decided in advance of
others: bifurcation. However the practice of arbitral tribunals not
having evidentiary hearings beyond a maximum of two weeks may
prompt a tribunal to itself consider bifurcation.
[2-20] he traditional split of liability followed by quantum will no
doubt feature in the considerations of most tribunals: clearly if liability is not found there is no reason to explore quantum and hence
costs that might otherwise have been incurred can be saved. Similarly
if liability is found on some, but not all, issues. If, however, liability
is found on all issues it may enable the parties to compromise quantum rendering the second stage unnecessary but if both liability
and quantum are fully contested, bifurcation can lead to greater costs
than dealing with everything on one occasion.
[2-21] Certainly in ICC arbitrations and in most others as well, the
rst procedural meeting will be at a stage when there is a Request for
Arbitration and an Answer and before memorials. Tribunals might,
in all but the most complex cases, be well advised to avoid memorials
2
See the discussion at [320].
40
and direct the parties to draw up a list of issues. Memorials can be a

very expensive option and lead to unwieldy documents. A list of issues
can bring a very disciplined approach. In a simple case there might
be a simple list. In more complex cases there might be a consolidated
responsive memorial (i.e. in a single document the Claimant sets out
his claim AND the Respondent responds) and the parties record the
issue between them in light of the rival contentions. his is a variation of a Redfern schedule but applied to memorials. It is a very
useful tool to focus attention on what is truly important.
[2-22] Arbitral tribunals might also nd it of assistance to address
issues at this early stage that might otherwise become issues later.
One such issue is the privilege standard to be applied. Before any
party has a particular issue to defend or attack it might be easier to
achieve consensus. Equally, achieving consensus on what does not
amount to good faith (without being prescriptive) might assist later.
Similar issues might be addressed in the same way all with a view to
ensuring that the parties fully understand what is expected of them
and their counsel so that time and cost are not expended other than
in the proper pursuit of the arbitral reference.
[2-23] he encouragement to the tribunal in Article 2.3 permits
a civil law style assumption of early intervention whilst preserving
party-autonomy. By referring to any issue it necessarily includes
issues of both fact and law.

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The IBA Rules on the Taking of Evidence in International Arbitration

Consultation on Evidentiary Issues

1 he Arbitral Tribunal shall consult the Parties at the earliest

Article 2: Consultation on Evidentiary Issues

After review of various sets of domestic and international arbitration rules

Particular Words and Phrases

pa rti cul ar wo rds a nd phras es

he consultation by the tribunal with the

Article 2: Consultation on Evidentiary Issues

[2-1] Article 2 is a new and important addition to the Rules. his

Article 2: Consultation on Evidentiary Issues

done primarily by the arbitrators. Depending on the subject matter

Such situations may then trigger additional pre-hearing submissions

Article 2: Consultation on Evidentiary Issues

See the discussion at [32].

See the discussion at [320].

Article 2: Consultation on Evidentiary Issues

and direct the parties to draw up a list of issues. Memorials can be a

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