Procedure of taking evidence in International Arbitration under IBA rules

By Azeez Nazar Sabri

In the international Arbitration under the ICC Arbitration Rules, the parties to the dispute(s) may adopt the IBA Rules on taking of evidence. IBA framed Rules on taking of evidence in 1999. These rules were revised by the IBA by a resolution of the IBA council on 29^th May 2010. IBA issued these Rules as a resource to parties and to the arbitrators to provide an efficient, economical and fair process for taking of evidence in international arbitration. The rules provide the mechanism for the presentation of documents, witnesses of fact and expert witness, inspection as well as the conduct of the evidentiary hearings.  

The IBA Rules can be used in conjunction with and adopted together with the other rules or procedures governing international arbitration.  Parties and Arbitral Tribunal may adopt the IBA Rules in whole or in part, to govern arbitration proceedings, or they may vary them or use them as a guidelines in developing their own procedures. Parties and Arbitral Tribunal are also free to adopt them to the particular circumstances of each arbitration.

Scope of Application:

As per Article 1 of the IBA Rules, where the parties have agreed to adopt IBA Rules or the Arbitral Tribunal has decided to apply the IBA Rules, the Rules shall govern the taking of evidence, except to the extent any specific provision of IBA rules is in conflict with any provision of governing law.

In case of conflict between the provision of the IBA Rules of evidence and General Rules, the IBA rules shall be applied by the Arbitral tribunal in such a manner that it determines best in order to accomplish the purpose of both the General Rules and IBA Rules of evidence.

In such cases where the IBA Rules of evidence and General Rules are silent on any matter concerning taking of evidence and the parties have also not agreed on the same then in such cases the Arbitral Tribunal shall conduct the taking of evidence as it deems appropriate in accordance with the general principles of the IBA Rules of evidence.

Documents

As per Article 3 of the IBA Rules within the time line given by the Arbitral Tribunal, each party shall submit to the Arbitral Tribunal all documents available to it on which it relies, including public documents, except for any documents that have already been submitted by the other party.

If the party required documents from the other party then he shall submit a request to the Arbitral tribunal and other party for such document. A Redfern schedule is used for this purpose. Redfern schedule contains the description of the document, statement as to how the documents requested are relevant to the case and the statement that the document requested are not in the possession, custody or control of the requesting party.

Within the timeline given the Arbitral Tribunal the other party will provide the documents to the requesting party, if the said document is available with him and he has no objection to provide the same.

If the party to whom the request has been made has an objection, it shall state the objection in writing to the Arbitral Tribunal. After consulting both the parties the Arbitral Tribunal shall pass an appropriate order on the objection of the party.

Witness of Fact

As per Article 4 of the IBA rules within the time line granted by the Arbitral Tribunal each party shall identify the witness on whose testimony it intends to rely and the subject matter of that testimony.

Any person may present evidence as a witness, including a Party or Party’s officer, employee or other representative.

Under IBA rules of evidence it is not improper for a party or its officers/ representatives to interview its witness and to discuss their prospective testimony with them.

Within stipulated time each party shall submit to the Arbitral Tribunal witness statement(s) on whose testimony it intends to rely. Each witness statement shall contain the full name and address of the witness, his designation, past and present, relationship with the party, description of his qualification and experience, a full details description of the facts and source of the witness information, an affirmation of truth and witness signature.

On the dates fixed by the Arbitral Tribunal such witness shall appear before the Arbitral Tribunal to give his testimony.

If a party wishes to present evidence from a person who will not appear voluntarily at its request, then Party may ask Arbitral tribunal to take appropriate steps to obtain the testimony of that party.

Any time before the arbitration is concluded, the Arbitral Tribunal may order any party to provide for the appearance for testimony at an evidentiary hearing of any person including one whose testimony has not yet been offered. However, a party to whom such request is addressed may object for any of the reasons set under Article 9.2 of IBA Rules.   

Expert Witness     

Article 5 of the IBA rules stipulates the procedure for expert witness. Party may rely on expert witness.

Evidentiary Hearings

Procedure for evidentiary hearings is given in Article 8 of the IBA Arbitration Rules for taking evidence. Each witness shall appear in person for his testimony. However, in special case the Arbitral Tribunal may allow the video conferencing.

Arbitral Tribunal shall at all-time have control over the evidentiary hearing. Arbitral Tribunal may limit or exclude any question to, answer by, or appearance of a witness. Ordinarily Claimant first present the testimony of its witness followed by the respondent present testify the witness. Following direct testimony the other party may question the witness, which is called cross- examination. Arbitral Tribunal may also question the witness.

Upon conclusion of the evidentiary hearing the Arbitral Tribunal shall determine the admissibility and relevance of the evidence offered by the parties in accordance with Article 9 of the IBA Rules for taking evidence.