Author: Peter Ashford*
Published: July 2011
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 practices.
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 …
*FCIArb; head of Commercial Dispute Resolution and International Arbitration at Cripps Harries Hall LLP.