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- Preliminary Material
- Main Text
- 1 Provenance and Development of the IBA Rules on Evidence
- Preamble
- Preliminary Material
- A Introduction
- B Preamble 1: Efficient, Economical, and Fair
- C Preamble 2: Flexibility
- D Preamble 3: Good Faith and Reasonable Notice of Evidence
- 1 The IBA General Principles
- 2 The First Principle: Good Faith
- a Introduction of an express obligation of good faith
- b Does the IBA obligation of good faith add anything to existing obligations and practice?
- c Operation of the obligation of good faith
- d What does ‘good faith’ mean?
- e Practical application of the duty of good faith to performance under the IBA Rules
- f Who is responsible for the breach of the obligation of good faith?
- 3 Available Sanctions for a Breach of the IBA Obligation of Good Faith Conduct
- 4 The Second Principle: Reasonable Notice of Evidence Relied on by the Other Parties
- 3 Definitions Used in the IBA Rules on Evidence
- Preliminary Material
- A Introduction
- B Definitions
- 3.2
- 1 ‘Arbitral Tribunal’ Means a Sole Arbitrator or a Panel of Arbitrators
- 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 ‘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
- 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
- 5 ‘Expert Report’ Means a Written Statement by a Tribunal-Appointed Expert or a Party-Appointed Expert
- 6 ‘General Rules’ Means the Institutional, ad hoc, or Other Rules that Apply to the Conduct of the Arbitration
- 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
- 8 ‘Party’ Means a Party to the Arbitration
- 9 ‘Party-Appointed Expert’ Means a Person or Organization Appointed by a Party in Order to Report on Specific Issues Determined by the Party
- 10 ‘Request to Produce’ Means a Written Request by a Party that Another Party Produce Documents
- 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
- 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
- 13 ‘Witness Statement’ Means a Written Statement of Testimony by a Witness of Fact
- 4 Article 1: Scope of Application
- Preliminary Material
- A Purpose
- B Conflict with a Mandatory Provision of Law
- 1 Introduction
- 2 Application of the IBA Rules Pursuant to Article 1.1
- 3 Resolution of Conflict between an IBA Rule and a Mandatory Provision of Law
- 4 Sources of Potential Conflict between the IBA Rules and Mandatory Provisions of Law
- 5 Who Determines Whether the Mandatory Provision of Law Is Applicable to the Case?
- C Version of the IBA Rules to Be Applied
- D Conflict with a Provision of the General Rules
- E Interpretation of the IBA Rules
- F Matters upon which the IBA Rules Are Silent
- 5 Article 2: Consultation on Evidentiary Issues
- Preliminary Material
- A Introduction
- B Consultation: Party/Party and Tribunal/Party
- C The Matters to Be Considered during Consultation
- 1 Overview
- 2 Particular Matters to Be Considered
- a Witness/expert evidence
- b Oral testimony
- c The process for the production of documents
- d Confidentiality
- e Efficiency, economy and conservation of resources
- D Tribunal Identification of Material Issues and/or Discrete Issues Suitable for Preliminary Determination
- 6 Article 3: Documents
- Preliminary Material
- A Introduction
- B Documents Relied on by the Parties
- C Request to Produce Documents
- 6.37
- 1 Party Right to Deliver a Request to Produce
- 2 Timing of a Request to Produce
- 3 The Content of a Request to Produce
- 4 Documents Maintained in Electronic Form
- 5 Statement of Relevance and Materiality
- a Introduction
- b ‘Relevant and material’ as best practice in international arbitration
- c Relevance and materiality under the IBA Rules: what do they mean?
- i Relevance versus materiality
- ii Relevant to the case
- iii Material to outcome of the case
- iv Relevant but not material
- v Documents sought in aid of unformulated claims
- vi Approach to drafting document requests
- vii Importance of the timing of the request to produce to establishing relevance and materiality
- viii Metadata
- ix Prima facie relevance and materiality
- x Burden of proof
- xi Good faith
- xii Cultural and practical perspectives on ‘relevant and material’
- 6 Statement that Documents Are Not in Possession, Custody, or Control of the Requesting Party
- 7 Statement of Reasons Why the Requesting Party Assumes that the Documents Are in the Possession, Custody, or Control of Another Party
- 8 The Use of Redfern Schedules for Requests to Produce
- D Voluntary Production
- E Objections to Production
- F Order for Production
- 1 Introduction
- 2 The Process for Determination by the Tribunal
- 3 The Making of an Order for Production
- 6.237
- 6.238
- a Relevance and materiality
- b None of the reasons for objection set forth in Article 9.2 applies
- c The requirements of Article 3.3 have been satisfied
- d Reformulation of the Request for Production
- 4 Production of Documents Ordered to Be Produced
- G Review of Documents
- H Documents Held by Third Parties
- I Documents Sought by the Tribunal
- J Additional Production by the Parties
- K General Issues Regarding Documents
- L Confidentiality
- M Separate Issues or Phases
- 7 Article 4: Witnesses of Fact
- Preliminary Material
- A Introduction
- B Witness Identification
- C Witness Relationship with a Party to the Arbitration
- D Contact with Witnesses
- E Witness Statements
- F Content of Witness Statements
- G Additional Witness Statements
- H Non-Attendance at an Evidentiary Hearing
- I No Acceptance of Content of the Witness Statement
- J The Unwilling Witness
- K Request for Witness Testimony by the Tribunal
- 8 Article 5: Party-Appointed Experts
- Preliminary Material
- Art.5 Party-Appointed Experts
- A Introduction
- B Is Expert Evidence Required, and If So, on Which Issues?
- C The Content of the Expert Report
- 1 Introduction
- 2 Matters to Be Included in the Expert Report
- 8.58
- a Details of the expert, expertise, and any relationship with the parties/tribunal
- b A description of the instructions provided to the expert
- c Statement of independence
- d Statement of facts on which the expert opinion is based
- e The expert opinion/conclusions together with details of methodology and evidence relied upon
- f Statement of the language in which the report was prepared, and in which the expert intends to give oral testimony
- g Affirmation of genuine belief
- h Signature
- i Attribution
- D Reply Expert Reports
- E Consultation between Opposing Experts
- F Failure to Attend the Evidentiary Hearing
- G Content of Expert Report Not Accepted Where Expert Not Called to Evidentiary Hearing
- 9 Article 6: Tribunal-Appointed Experts
- Preliminary Material
- Article 6 Tribunal-Appointed Experts
- A Introduction
- B Party Involvement in the Tribunal’s Expert Appointment
- C Party Objection to a Proposed Choice of Tribunal-Appointed Expert
- D Provision of Information, Documents, and Other Materials to the Expert
- E Content of the Report Prepared by the Tribunal-Appointed Expert
- 1 Introduction
- 2 Matters to Be Included in the Expert Report
- F The Parties’ Right to Respond to Evidence Produced by the Tribunal-Appointed Expert
- G The Attendance of the Tribunal-Appointed Expert at the Evidentiary Hearing
- H Assessment of the Evidence by the Tribunal
- I Fees and Expenses of the Expert
- 10 Article 7: Inspection
- Preliminary Material
- A Introduction
- B What May Be Inspected?
- C The Arbitral Tribunal’s Power to Order an Inspection
- D Restrictions Imposed by Article 9.2
- E Arrangements for the Inspection
- 11 Article 8: Evidentiary Hearing
- Preliminary Material
- A Introduction
- B Attendance of Witnesses for Cross-Examination
- C Attendance in Person
- D Tribunal Control of Examination of Witnesses
- E Order and Organization of Questions to a Witness
- F Affirmation and Confirmation by the Witness
- G Tribunal Request for Evidence
- H Issues Not Addressed in Article 8
- 12 Article 9: Admissibility and Assessment of Evidence
- Preliminary Material
- A Introduction
- B Assessment of Evidence
- C Exclusion of Evidence
- D Relevance and Materiality
- E Legal Impediment and Privilege
- 1 Introduction
- 2 Different Types of Legal Impediment or Privilege
- 3 Applicable Law—Legal or Ethical Rules Determined by the Tribunal to Be Applicable
- 4 Identification of Applicable Rules under Article 9.2 and the Relationship between Article 9.2 and Article 9.3
- 5 Factors to Be Considered by the Tribunal under Article 9.3
- 12.135
- 12.136
- 12.137
- 12.138
- 12.139
- 12.140
- 12.141
- 12.142
- a The need to protect confidentiality of legal advice
- b The need to protect the confidentiality of settlement discussions
- c The expectations of the parties and their advisors
- d Waiver of privilege or legal impediment
- e Need to maintain fairness and equality between the parties
- f Assessment of whether privilege exists
- F Unreasonable Burden to Produce
- G Loss or Destruction of the Documents
- H Commercial or Technical Confidentiality
- I Political or Institutional Sensitivity
- J Economy, Proportionality, and Fairness
- K Confidentiality Protection
- L Adverse Inferences
- M Costs Sanctions for Lack of Good Faith
- Further Material
- Appendix 1 Commentary on the Revised Text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration
- 1999 IBA Working Party& 2010 IBA Rules of Evidence Review Subcommittee
- Preamble
- Definitions
- Article 1—Scope of Application
- Article 2—Consultation on Evidentiary Issues
- Article 3—Production of Documents
- Article 4—Witnesses of Fact
- Article 5—Party-Appointed Experts
- Article 6—Tribunal-Appointed Experts
- Article 7—Inspection
- Article 8—Evidentiary hearing
- Article 9—Admissibility and Assessment of the Evidence
- Appendix 2 Article 1 Roadmap: Scope of Application (and How to Deal with Conflicting Provisions)
- Appendix 3 Checklist of Points to Consider at the First Procedural Conference (and/or Subsequently) in Relation to the Process for the Taking of Evidence
- IBA Rules
- Issues for which the Tribunal Considers Preliminary Determination May Be Appropriate
- Issues the Tribunal Regards as Relevant to the Case and Material to Its Outcome
- Submissions
- Documents and the Production of Documents (Article 3 of the IBA Rules)
- Fact Witness Evidence (Article 4 of the IBA Rules)
- Expert Evidence (Articles 5 and 6 of the IBA Rules)
- Foreign Law Issues
- Good Faith Conduct
- Adverse Inferences
- Inspections (Article 7 of the IBA Rules)
- Evidentiary Hearing (Article 8 of the IBA Rules)
- Confidentiality (Articles 3.13 and 9.4 of the IBA Rules)
- Points to Consider to Promote Efficiency, Economy, and Conservation of Resources in Connection with the Taking of Evidence
- Appendix 4 Sample Redfern Schedule Delivered by Claimant
- Appendix 5 Template Redfern Schedule
- Appendix 6 Veeder Codes for Objections to Requests for Production under the IBA Rules
- Appendix 7 Checklist for Production of Documents
- Appendix 8 Checklist for Witnesses of Fact
- A Matters to Consider during Consultation on Procedure and Timetabling/Submissions for the First Procedural Order
- B Matters to Consider When Drawing Up a List of Potential Witnesses and in the Preparation of Witness Statements
- C The Reluctant Witness
- D Tribunal Witnesses
- E Matters to Consider in Connection with the Evidentiary Hearing
- Appendix 9 Checklist for Party-Appointed Experts
- Appendix 10 Table for Joint Statement from Party-Appointed Experts on Areas of Agreement and Disagreement
- Appendix 11 Checklist and Guidance on Use of Tribunal-Appointed Experts
- A Matters to Consider during Negotiations on Procedure and Timetabling/Submissions on the First Procedural Order (PO1)
- B Procedure for Appointment of Tribunal-Appointed Expert and Subsequent Steps
- C Matters to Consider When Drawing Up Terms of Reference for the Tribunal-Appointed Expert
- D Matters to Consider in Connection with the Evidentiary Hearing
- Appendix 12 Checklist for Inspection
- Index
- Appendix 1 Commentary on the Revised Text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration
- [44.200.40.195]
- 44.200.40.195
