International Construction Law Review
AN ANNOTATED COMMENTARY ON THE 2010 REVISED IBA RULES OF EVIDENCE FOR INTERNATIONAL ARBITRATION
NATHAN D O’MALLEY1
Conway & Partners, Rotterdam
INTRODUCTION
On 28 May, 2010, the International Bar Association Council adopted a revised version of the 1999 IBA Rules on the Taking of Evidence in International Commercial Arbitration (generally, the “IBA Rules” or simply the “Rules”). The revisions to the IBA Rules have been implemented as a result of a two year collaborative process which involved an initial editing of the text of the Rules by a select subcommittee of leading international arbitration practioners (the “Review Subcommittee”) followed by an invitation to the public for comments. For those who are involved in international arbitration as users, counsel or arbitrators, the IBA Rules are a well-known set of guidelines which many within the practice of arbitration regard as providing persuasive guidance on accepted norms of evidentiary procedure. It can therefore be anticipated that the 2010 revised version of the Rules will have a significant impact on the future procedural practices used in international arbitration in a manner similar to its predecessor.
The substantive revisions to the 1999 IBA Rules may be characterised as falling into three general categories:
- (1) additions to the Rules which strengthen an arbitral tribunal’s control over the taking of evidence at key junctures;
- (2) revisions intended to clarify difficult areas of evidentiary procedure; and
- (3) enhanced case management techniques.
These three themes will be revisited throughout this commentary on the changes to the Rules.2 Moreover, the analysis in this article relies extensively on the available case law concerning the taking of evidence in international arbitration as a means of further establishing the general approach to applying the standards found within the Rules. Finally, it should be noted that this article gives particular attention to the manner in which the Rules may be applied in relation to international construction arbitration.
1 Partner, Conway & Partners NV. The opinions expressed in this article are those of the author. The author would like to acknowledge the assistance in the preparation of this article of Olave Basabose, an associate advocate at Conway & Partners.
2 Not every revision in the 2010 Rules has been commented on for reasons having to do with length. Moreover, some of the guidelines which are discussed below have not had textual revisions made to them, but relate to other significant changes which have been made in the Rules. Those changes to each Article which are discussed below have been italicised in the text preceding the commentary for ease of reference, or where words have been deleted which are relevant to the commentary, it is noted.
The International Construction Law Review [2010
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