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3 Definitions Used in the IBA Rules on Evidence

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher

From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration

Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Hearings — Expert evidence — Witnesses — Arbitral rules — Arbitration

(p. 43) Definitions Used in the IBA Rules on Evidence

A.  Introduction

3.1  The Commentary to the IBA Rules explains that the definitions section of those rules sets out basic definitions to be applied when using the IBA Rules on Evidence, and that these are ‘generally straightforward, with commonly understood meanings’. The Commentary also confirms that the definitions themselves do not provide any substantive rules of conduct or evidence.1

B.  Definitions

3.2  Each of the definitions provided in the Definitions section of the IBA Rules is described below.

1.  ‘Arbitral Tribunal’ Means a Sole Arbitrator or a Panel of Arbitrators

3.3  The definition of ‘arbitral tribunal’ is straightforward and unambiguous. Additional wording included in earlier iterations of the rules (‘or the majority of them as the case (p. 44) may be and shall include an umpire’2 and ‘validly deciding by majority or otherwise’)3 have wisely been removed from the 2010 version of the rules.

2.  ‘Claimant’ means the Party or Parties who Commenced the Arbitration and Any Party Who, through Joinder or Otherwise, Becomes Aligned with Such Party or Parties

3.4  This definition of ‘Claimant’ is the same as appears in the 1999 IBA Rules. It extends the definition contained in the 1983 Rules by addition of the words ‘who, through joinder or otherwise, becomes aligned with such Party or Parties’. We assume that this addition was considered desirable in light of the increased frequency with which joinder and consolidation occur in current practice and in the light of revisions to a number of institutional rules in the period post-1983 to permit joinder and consolidation.4

3.  ‘Document’ Means a Writing, Communication, Picture, Drawing, Program, or Data of any Kind, Whether Recorded or Maintained on Paper or by Electronic, Audio, Visual, or any Other Means

3.5  Although the definition of ‘Document’ in the 1999 IBA Rules5 was considered by the drafting committee to be broad enough to include most forms of electronic evidence, minor changes were nonetheless introduced in the 2010 IBA Rules. The Commentary on the 2010 IBA Rules explains that the Review Subcommittee wanted to be sure that all forms of evidence, including electronic evidence, are subject to the IBA Rules and may be requested, subject to the requirements of Article 3.3 (including satisfaction of the relevance and materiality standard) and Article 9 (grounds for objection to production).6 In line with that objective, the definition was reworded to its present form. However, consideration of the previous definition in the 1999 IBA Rules (‘a writing of any kind, whether recorded on paper, electronic means, audio or visual recordings or (p. 45) other mechanical or electronic means of storing or recording information’) confirms that this was largely an updating exercise, rather than the introduction of any material change.

3.6  In substance, under the IBA Rules, electronic documents are treated in the same way as paper documents, although there is an acknowledgement in Article 3 that some discussion around identification of file names and search terms may be necessary in relation to a request for electronic documents. There is no additional express provision for issues generated by the nature and volume of electronic documents—for example, data preservation. A recent IBA report on the results of a survey on the IBA Rules noted that a number of respondents advocated for revisions ‘aimed at facilitating the exchange of e-documents between the parties and providing guidance on the use of electronic evidence’.7

4.  ‘Evidentiary Hearing’ Means any Hearing, Whether or Not Held on Consecutive Days, at which the Arbitral Tribunal, Whether in Person, by Teleconference, Videoconference, or Other Method, Receives Oral or Other Evidence

3.7  The definition of ‘Evidentiary Hearing’ is straightforward. Given technological advances, and the more frequent use of virtual hearings, the previous definition of evidentiary hearing contained in the 1999 Rules has been updated to include express reference to hearings ‘by teleconference, video conference or other method’.

5.  ‘Expert Report’ Means a Written Statement by a Tribunal-Appointed Expert or a Party-Appointed Expert

3.8  The definition of ‘expert report’ is straightforward and, importantly, includes both a report from a party-appointed expert as provided for in Article 5, and a report from a tribunal-appointed expert as provided for in Article 6.

3.9  The previous definition of expert report contained in the 1999 IBA Rules included a requirement for the report to be ‘submitted pursuant to the IBA Rules of Evidence’. In practice, this wording appears to add little and has been deleted from the current version of the IBA Rules.

(p. 46) 6.  ‘General Rules’ Means the Institutional, ad hoc, or Other Rules that Apply to the Conduct of the Arbitration

3.10  ‘General Rules’ is a term not commonly used elsewhere. As defined in the IBA Rules, it refers to institutional, ad hoc, or other rules that apply to the arbitration, eg institutional rules such as the ICC Rules, the LCIA Rules, and the SIAC Rules, and ad hoc rules such as the UNCITRAL Rules. We assume that the inclusion of ‘other rules’ is a ‘sweep up provision intended to catch any other set of rules that may apply’.8 For example, the parties may have agreed to adopt the IBA Guidelines on Party Representation in International Arbitration.9

3.11  The definition of General Rules in the 1999 Rules referred to the rules ‘according to which the Parties are conducting their arbitration’. The current description—rules ‘that apply to the conduct of the arbitration’—is arguably more accurate in circumstances where application of the relevant rules has been agreed in a binding arbitration agreement.

3.12  Interestingly, the corresponding definition in the 1983 IBA Rules referred to ‘the specific rules of Arbitration agreed upon by the parties except in so far as evidence is concerned’.10 This formulation—suggesting that the provisions of the IBA Rules would take precedence over the General Rules in relation to matters of evidence—reflected the express wording to this effect contained in the Introduction to the 1983 IBA Rules.11 A more nuanced approach to issues of conflict was adopted in the 1999 IBA Rules, and followed in the 2010 IBA Rules, under which a tribunal is required to apply the IBA Rules in a manner that best accomplishes the purposes of both the IBA Rules and the General Rules. This may account for the original definition being abandoned. It is in Article 1.3 (where this new approach is stipulated) and in Article 1.5 (dealing with a situation where both the IBA Rules and the General Rules are silent) that the term ‘General Rules’ is used.

(p. 47) 7.  ‘IBA Rules on Evidence’ or ‘Rules’ Means these IBA Rules on the Taking of Evidence in International Arbitration, as They May Be Revised or Amended from Time to Time

3.13  This is a new definition introduced in the 2010 Rules. The definition suggests that any reference to the IBA Rules should be treated as a reference to the current version of those rules. In this respect, the terms of Article 1.2 of the IBA should be borne in mind. This provision is discussed in more detail in Chapter 4 but, in summary, it provides that where parties have agreed to apply the IBA Rules, they are deemed to have agreed to the version current on the date of such agreement, ie not the version current on the date the arbitration commences.

8.  ‘Party’ Means a Party to the Arbitration

3.14  For the purposes of the IBA Rules, we believe this definition to be straightforward and unambiguous.

9.  ‘Party-Appointed Expert’ Means a Person or Organization Appointed by a Party in Order to Report on Specific Issues Determined by the Party

3.15  This definition refers to an expert appointed within the umbrella of Article 5 of the IBA Rules (Party-Appointed Experts).

3.16  The definition in the 1999 IBA Rules did not include reference to an organization. The expanded wording makes clear that the expert appointed by a party can be an organization as well as an individual. This more accurately reflects the common position where expert evidence is prepared by, and credited to, several individuals within an organization, even though only one of them may ultimately give oral evidence. The new definition also describes the purpose of the expert appointment as being ‘to report on specific issues’. It is not clear, but this wording may have been intended to emphasize that the expert evidence produced should be focused and address the particular issues in the case on which expert evidence may assist the tribunal.

10  ‘Request to Produce’ Means a Written Request by a Party that Another Party Produce Documents

3.17  The definition of ‘Request to Produce’ is different to that contained in the 1999 IBA Rules.12 The change is a consequence of a substantive change to the rules themselves, by which a (p. 48) party is now permitted to make a written request to produce direct to another party, rather than delivering a request to produce to the tribunal, as was the previous position.13

11.  ‘Respondent’ Means the Party or Parties against whom the Claimant Made Its Claim, and any Party who, through Joinder or Otherwise, Becomes Aligned with such Party or Parties, and Includes a Respondent Making a Counter-Claim

3.18  This definition is in similar terms to that given for ‘Claimant’. It also makes clear that references to ‘Respondent’ in the IBA Rules will ‘capture’ a respondent for all purposes, ie a counter-claiming respondent will not be treated as being a ‘Claimant’ in relation to the counter-claim.

12.  ‘Tribunal-Appointed Expert’ Means a Person or Organization Appointed by the Arbitral Tribunal in Order to Report to It on Specific Issues Determined by the Arbitral Tribunal

3.19  This definition refers to an expert appointed within the umbrella of Article 6 of the IBA Rules (Tribunal-Appointed Experts). As with party-appointed experts (see 9. ‘Party-Appointed Expert’) the definition now extends to the appointment of an organization and not just an individual.

13.  ‘Witness Statement’ Means a Written Statement of Testimony by a Witness of Fact

3.20  The 1983 IBA Rules contained a definition of witness statement (‘a written statement complying with the provisions of Article 5(2) [as to content]’) but extended to statements from both a witness of fact and an expert.14 The definition was dropped in the 1999 IBA Rules but reappears in the current IBA Rules. It is confined to statements ‘by a witness of fact’, with expert evidence produced by tribunal- or party-appointed experts having their own separate definition.


1  1999 IBA Working Party and 2010 IBA Rules of Evidence Review Subcommittee, ‘Commentary on the Revised Text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration’ (International Bar Association) 4 <www.ibanet.org/Document/Default.aspx?DocumentUid=DD240932-OE08-40D4-9866-309A635487CO> accessed 27 November 2018 (hereafter ‘Commentary on the IBA Rules’).

2  IBA Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration 1983, Article 2 (hereafter ‘1983 IBA Rules’).

3  IBA Rules on the Taking of Evidence in International Commercial Arbitration 1999, Article 1 (hereafter ‘1999 IBA Rules’).

4  For example, in relation to joinder, see the LCIA Rules 1998 and 2014, which give the tribunal the power to join third parties to the arbitration, at the request of a party, provided that the third party and the applicant party consent in writing (LCIA Rules 1998, Article 22.1(h); LCIA Rules 2014, Article 22.1(viii)); the SIAC Rules 2013 give the tribunal the power to allow one or more third parties to be joined in the arbitration, provided that they are a party to the arbitration agreement and with the written consent of the third party (SIAC Rules 2013, Rule 24.1(b)). See also the ICC Rules 2012 and 2017, Article 7, and the HKIAC Administered Arbitration Rules 2013 and 2018, Article 27.

5  ‘Document’ means a writing of any kind, whether recorded on paper, electronic means, audio or visual recordings, or other mechanical or electronic means of storing or recording information. 1999 IBA Rules (n 3), Article 1.

6  Commentary on the IBA Rules (n 1) 4.

7  The IBA Arbitration Guidelines and Rules Subcommittee, ‘Report on the Reception of the IBA Arbitration Soft Law Products’ (International Bar Association 2016) 91 www.ibanet.org/Document/Default.aspx?DocumentUid=105d29a3-6261-4437-84e2-1c8637844beb accessed 27 November 2018.

8  In our view, the definition of General Rules does not extend to rules not intended to apply specifically to the conduct of the arbitration as a whole, or that the parties to the arbitration have not agreed to adopt in relation to the arbitration. For example, in our view, professional conduct rules applicable to individual counsel involved in the arbitration would not fall within the definition of General Rules. There may, of course, be mandatory provisions of law that may apply to the arbitration (eg mandatory provisions of law at the seat of arbitration). However, under the IBA Rules, these are treated as a different category of provision. See, for example, IBA Rules (n 8), Article 1.1 of the IBA Rules, which makes express provision for circumstances of conflict between the IBA Rules and a mandatory provision of law. See also IBA Rules (n 8), Article 1.3 which addresses a conflict between the IBA Rules and the General Rules.

9  Although those provisions are entitled ‘guidelines’, they make clear that their terms may be adopted as a matter of contract by agreement between the parties. International Bar Association, IBA Guidelines on Party Representation in International Arbitration (International Bar Association 2013) 2. It appears to us that, in such circumstances, they may be regarded as rules falling within the definition of ‘General Rules’.

10  Emphasis added.

11  The Introduction to 1983 IBA Rules (n 2) stated that ‘where [the IBA Rules] are inconsistent with the [ . . . ] General Rules, these I.B.A. Rules of Evidence shall prevail but solely as regards the presentation and reception of evidence’.

12  The definition in 1999 IBA Rules (n 3) was ‘a request by a Party for a procedural order by which the arbitral tribunal would direct another Party to produce documents’.

13  1999 IBA Rules (n 3), Article 3.2. Compare this with the current IBA Rules (n 8), Article 3.2, which provides for delivery to both the tribunal, and to the other party. In both cases the tribunal has to stipulate the date by which production is to be given and, where objection is raised by the ‘producing’ party, the tribunal has to make an order for production.

14  1983 IBA Rules (n 2), Article 5.2 required the statement to reflect ‘whether the witness is a witness of fact or an expert . . . ’.