Witness Statements under the IBA Rules of Evidence: What to Do about Hearsay?

Abstract

IN 1999, the International Bar Association issued the revised IBA Rules on the Taking of Evidence in International Commercial Arbitration (‘the IBA Rules’),1 replacing an earlier (1983) version that had not won strong approval from the international arbitration community. In the five years since their adoption, the IBA Rules have received significant support from practitioners and arbitrators both. In some cases, the IBA Rules have been adopted, either in whole or in part, by arbitrators issuing procedural orders pursuant to their power to structure the arbitration in a fair and equitable manner. In other cases, parties have taken the affirmative step of including references to the IBA Rules in their arbitration agreements. The IBA Rules’ ability to combine flexibility and predictability in an area that has previously been subject to great variation and unpredictability – i.e. , procedure – has proven increasingly popular in international arbitration.2 However, there are some areas where the IBA Rules give little guidance. Courts are also unlikely to offer their opinion on the interpretation of the IBA Rules, since arbitral procedure, particularly on the taking of evidence, falls firmly within the discretion of the arbitrators and is thus beyond the scope of appeal. The absence of binding or even persuasive authority can increase the costs of arbitration, since parties may be more likely to make requests to their panels for interim rulings. Difficulties may be particularly apt to arise in international arbitrations, when the clash of common law and civilian legal cultures becomes most pronounced. Hearsay is one area where disputes are likely to arise.3 Commentators have long described how different legal systems approach the use of witness statements and cross-examination and have, for the most part, concluded that international arbitrators have developed a workable compromise between civil law and common law …