5 Article 2: Consultation on Evidentiary Issues

Subject(s):

Conduct of proceedings — Evidence — Arbitral rules

This chapter focuses on Article 2 of the IBA Rules. Article 2 is a new provision introduced by the current IBA Rules, and it consists of three parts. First, it provides for a mandatory consultation between the tribunal and the parties at the earliest appropriate time in the proceedings with the objective of agreeing on an ‘efficient, economical and fair process for the taking of evidence’. Second, it provides a framework for discussing evidentiary issues; it sets out a non-exhaustive list of evidentiary matters that the tribunal and parties may wish to consider during the mandatory consultation. Third, it encourages, but does not require, the tribunal to identify to the parties, as soon as it considers it to be appropriate, any issues (i) that the tribunal may regard as relevant to the case and material to its outcome; and/or (ii) for which a preliminary determination may be appropriate.