Importance and Impact of the First PRT, the IBA Evidence Rules - Chapter 04 - Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

Author(s): 

Christoph M. Müller

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24 pages

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Published: 

October, 2015

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Originally from Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

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1. INTRODUCTION

 

The 2010 International Bar Association Rules on the Taking of

Evidence in International Arbitration (hereinafter: IBA Evidence Rules)

are the successor to the very first para-regulatory text (hereinafter:

PRT) dealing with procedural aspects in international commercial

arbitration. They thus represent the starting point of the current trend

towards codified standards for numerous aspects of arbitral

proceedings in international settings. The role they have played in the

development of standardized arbitral practices justifies taking a closer

look at their importance and impact.

 

This contribution presents the historical development of the IBA

Evidence Rules as well as their scope of application. It also examines

their actual application by parties and arbitrators. It finally shows how

the IBA Evidence Rules could represent a step in a more general

evolution towards an international lex evidentia.

 

2. HISTORICAL DEVELOPMENT

 

2.1 The Starting Point: the 1983 Supplementary Rules

 

The IBA Evidence Rules as we know them today have their origin

in the 1983 Supplementary Rules Governing the Presentation and

Reception of Evidence in International Commercial Arbitration1

(hereinafter “the 1983 Supplementary Rules”). The 1983 Supplementary

Rules were the very first PRT addressing procedural aspects in

international arbitrations.

 

What were the underlying reasons for the IBA to issue such Rules

in the early eighties?

 

First, during the late seventies, powerful American law firms

operating at a global level succeeded in imposing procedural devices

from US State court proceedings in international arbitration, in

particular document production, discovery and written witness

statements.2 International arbitration thus became a kind of “offshore

U.S. litigation”.3 Of course, counsel in arbitration with an Anglo-

American background felt at ease with these practices. Continental

European lawyers however felt at a competitive disadvantage when

they were confronted in an international arbitration with Common

Law counsel, familiar with document production and crossexamination

techniques.4

 

Second, it is true that other efforts had previously been made

from time to time before the early eighties to develop a uniform

arbitration law and uniform rules for application in international

arbitration, such as the Rules on Commercial Arbitration of the

International Law Association in 1950, the Uniform Law on Arbitration

in Respect of Relations of Private Law by UNIDROIT in 1935 (revised

in 1954 and amended by the Legal Committee of the Consultative

Assembly of the Council of Europe in 1957), the European Convention

on International Commercial Arbitration of 1961, the ECE Rules for

International Commercial Arbitration by the United Nations Economic

Commission for Europe in 1966, and the UNCITRAL Arbitration Rules

in 1976.5 However, these Rules as well as the draft of the then

proposed UNCITRAL Model Law on International Commercial

Arbitration6 ducked the difficult issues to a large extent, by leaving to

the agreement of the parties the actual procedure to be followed and,
failing such agreement, to the discretion of the arbitrators.7 This is why