Rule Changes Affecting The International Arbitration Community - ARIA Vol 22. No.1 2011
Peter Ashford - FCIArb; head of Commercial Dispute Resolution and International Arbitration at
Originally from American Review of International Arbitration - ARIA
Arbitration is the primary method for dispute resolution in cross-border
commerce. As global trade continues to grow so does the importance of keeping
international arbitration in line with the expectations of its users as an effective,
efficient and coherent procedure. In recent years there have been concerns that
international arbitration rules may have fallen out of step with modern best
Responding to pressure from users to remain up to date, many of the major
international arbitration institutions have recently embarked on updating and
revising projects. Thus 2010–2011 has seen revisions to the best known and most
widely used international arbitration rules. The IBA led the pack closely followed
by the Singaporean SIAC Rules and U.N. Sponsored UNCITRAL Rules, while
revisions to the ICC and LCIA Rules are expected shortly.
Parties commonly incorporating arbitration clauses into their contracts are
bound to be affected by these changes, but, for once, change is not all bad!
II. IBA RULES
The International Bar Association (“IBA”) Rules on the Taking of Evidence
in International Commercial Arbitration (the “Rules”) are/were one of the few safe
havens in international arbitration. Most parties, counsel and tribunals adopt the
Rules either expressly in the contract, Terms of Reference or first procedural
order, or are otherwise guided by them.
The original 1983 Rules were updated in 1999. The 1999 Rules have been
further modified by a committee under the joint chairmanship of Judith Gill QC of
Allen & Overy and Guido Tawil of M&M Bomchil of Buenos Aires.
After consultation with members of the original drafting team and following a
public comment period, the Arbitration Committee submitted the Revised Rules to
the IBA Council and Legal Practice Division for approval in March 2010. On
May 29, 2010, the IBA officially adopted the IBA Rules on the Taking of
Evidence in International Arbitration (the “Revised Rules”).
The title of the Revised Rules shows that the rules are for the “Taking of
Evidence in International Arbitration” as opposed to “International Commercial
Arbitration,” the title of the previous version. The Revised Rules are intended to
apply to both investment and commercial arbitrations as evidenced by the deletion
of the word “commercial” from the title. This is in recognition of the potential