In their new book, A Guide to the IBA Rules on the Taking of Evidence in International Arbitration,1Roman Khodykin and Carol Mulcahy, A Guide to the IBA Rules on the Taking of Evidence in International Arbitration (Nicholas Fletcher QC ed., Oxford University Press 2019).1 Roman Khodykin and Carol Mulcahy, with Nicholas Fletcher QC as Consultant Editor, take a deep dive into the IBA Rules on the Taking of Evidence in International Arbitration (the “Rules”). Khodykin and Mulcahy’s comprehensive, article-by-article analysis draws on reports of the IBA working groups, case law, academic authorities, comparisons to various arbitral rules, and their own practical experiences to provide practical guidance on evidentiary issues that frequently arise in international arbitrations.
As summarized in the preface, the Rules are “almost ubiquitous” in international arbitration today, with procedural orders routinely referring to them.2Id. at i.2 Both the 1999 and revised 2010 version of the Rules draw their strengths from the experiences of established arbitrators and practitioners from different legal backgrounds. Khodykin and Mulcahy have followed this approach by “cast[ing] a wide net” to analyze the Rules from common and civil law perspectives.3Id.3
The book follows the structure of the Rules, with each chapter providing the full text of each Article before offering a detailed analysis of the individual provisions. This article-by-article approach delivers to readers strategies for confronting evidentiary issues under the Rules that are likely to arise in nearly all arbitrations. Chapter 6, for instance, details the provisions of Article 3 – “Documents,” which will be familiar to many users of the Rules. But Khodykin and Mulcahy’s analysis offers users fresh perspectives on Article 3’s provisions be explaining their drafting history (including introduction of the concept of “relevant and material to outcome”),4Id. at paras. 6.12-6.23.4 key revisions in the 2010 Rules,5Id. at paras. 6.24-6.25.5 and real-world experiences of how the provisions have been applied. For example, in detailing Article 3.3(a), which allows parties to request “narrow and specific” categories of documents, Khodykin and Mulcahy provide examples from actual cases of categories of document requests that were accepted and rejected under Article 3.3.(a)’s standard.6See id. at para. 6.62 & Box 6.1.6
But the book also provides clarity on provisions of the Rules with which practitioners may be less familiar, such as those on consultation on evidentiary issues provided for in Article 2 of the Rules. As the book explains, Article 2 of the Rules deals with the tribunal’s role in managing the exchange of evidence.7Id. at para. 5.1.7 Although Article 2 is less frequently referenced than other provisions of the Rules, Khodykin and Mulchay’s analysis affords readers with strategies to better using Article 2 to more efficiently manage evidentiary issues and to potentially avoid common disputes—both of which can decrease time and costs. For example, the book suggests approaches to consider at an early phase of the arbitration whether certain fact or expert evidence is required and, if so, how it may be limited.8Id. at paras. 5.53-5.61.8
In addition to the detailed article-by-article analysis, the book provides numerous appendices that will serve as helpful references throughout an arbitration. Among the appendices are a sample Redfern schedule and checklists for taking various types of evidence in the arbitration. For example, the “Checklist for Production of Documents” provides checklist items for the requesting party and tribunal, with references to the relevant provisions in the Rules.9Id. at Appendix 7. 9
A Guide to the IBA Rules on the Taking of Evidence in International Arbitration is a useful and practical resource that provides readers with the tools to manage both routine and complicated evidentiary issue in international arbitration. The book is a welcome addition to understanding how the Rules apply in practice, and arbitrators and international arbitration practitioners alike will undoubtedly find the book to be a helpful and repeatedly-referenced source.