The publication of case materials in which reference is made to the IBA Rules on the Taking of Evidence in International Arbitration has been prompted by a survey initiated by the Arbitration Guidelines and Rules Subcommittee of the Arbitration Committee of the International Bar Association (IBA). The aim of that survey was to give the IBA a better understanding of how its rules and guidelines are being used. It is hoped that the following illustrations from ICC cases will be of interest, not only for the survey but also to practitioners in general.

Although no exhaustive statistics are available, the IBA Rules on the Taking of Evidence in International Arbitration are frequently cited in ICC cases. However, a mere reference to the IBA Rules (e.g. in the Terms of Reference or a procedural order setting out ground rules for the conduct of proceedings), while demonstrating an awareness of those Rules, does not necessarily mean that they were actually applied in the proceedings. Equally, if not more, instructive is the study of case examples showing the Rules in use. That is the purpose of this chapter.

The chapter begins with a series of short extracts from terms of reference, procedural orders and awards that comment or elaborate on specific aspects of the IBA Rules, or provide brief illustrations of evidentiary issues in relation to which the IBA Rules have been cited. These extracts are presented by topic.

The second part of the chapter consists of more extensive extracts, again from awards, procedural orders and terms of reference, which show references to the IBA Rules in the wider context of requests and disputes relating to evidence. They provide examples of the arguments made and determinations reached and show the role the IBA Rules have played in that context. Each extract is preceded by a short introduction to the case in English, French and Spanish.

The extracts have been redacted to render them anonymous and the footnotes, which are part of the original texts unless stated otherwise, have been renumbered sequentially.

1. Force of the IBA Rules

The IBA Rules, as envisaged in their Preamble, may be adopted to govern arbitration proceedings or may serve as guidelines. In other words, their use may be made obligatory or optional. Examples of both kinds of usage have been found in ICC cases. In the first two examples below the IBA Rules were given binding force, whereas in the third they were referred to merely as a source of inspiration.

'The proceedings before the Sole Arbitrator shall be governed by the ICC Rules of Arbitration (in force as from 1 January 1998), the law currently applicable to international arbitration in the Republic of the Philippines and the IBA Rules on the Taking of Evidence in International Commercial Arbitration …' (Final Award, November 2010)

'Except as modified herein or subject to any mandatory rules of law relating to arbitration procedure for international arbitrations held in London, England, the arbitral procedure shall follow the ICC Rules and/or the IBA Rules on the Taking of Evidence in International Commercial Arbitration, as appropriate. Where the ICC Rules and/or IBA Rules are silent on a procedural issue, the Tribunal shall determine the arbitral procedure.' (Terms of Reference, November 2013)

'In administering the evidence, the Arbitral Tribunal will be entitled to take inspiration from the IBA Rules on the Taking of Evidence in International Commercial Arbitration of 1 June 1999.' (Terms of Reference, September 2007)

In another case, a more ambivalent approach was taken with certain provisions of the IBA Rules having binding force on the parties (e.g. 'A Request to Produce shall conform to the requirements set out in Article 3.3 of the IBA Rules'), but the arbitral tribunal being free to use them as guidelines at its discretion:

'5.1. The IBA Rules on the Taking of Evidence in International Commercial Arbitration (the "IBA Rules") and the Chartered Institute of Arbitrators Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration (the "CIArb Protocol") may be referred to by the Arbitral Tribunal as general guidelines in this arbitration.

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7.1. The Claimant and the Respondent shall each be at liberty to submit to the Tribunal a Request to Produce on or before the date indicated on the Procedural Timetable. A Request to Produce shall conform to the requirements set out in Article 3.3 of the IBA Rules.

7.2. On or before the deadline indicated on the Procedural Timetable, the Party to whom a Request to Produce is addressed shall either (i) produce to the Tribunal and the other Party copies of all the documents requested in its possession, custody or control as to which no objection is made, or (ii) state its objections in writing to the Tribunal, the reason for such objections being any of those set forth in Article 9.2 or a failure to satisfy any of the requirements of Article 3.3 of the IBA Rules.

7.3. All Requests to Produce and objections shall be submitted to the Tribunal in the form of a Redfern Schedule. The Tribunal shall, on or before the dates indicated on the Procedural Timetable, consider any Request to Produce and the objections. The Tribunal may order the Party to whom such Request is addressed to produce to the other Party those requested documents in its possession, custody or control as to which the Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant and material to the case, and (ii) none of the reasons for the objection set forth in the IBA Rules applies.

7.4. Copies of documents submitted or produced must conform fully to the originals. At the request of the Tribunal, any original must be presented for inspection.' (Procedural Order, June 2013)

Arbitrators have been particularly insistent on their freedom <underline>not</underline> to be bound by the IBA Rules, as in the following example:

'For its decision, the Tribunal will be guided - but will not be bound - by Articles 3 and 9 of the IBA Rules on the Taking of Evidence in International Arbitration (29 May 2010 version) (hereinafter the "IBA Rules") in so far as consistent with the terms of the Contract. On this basis, the Tribunal considers that the following standards should guide its reasoning:

(i) The request for production must identify each document or specific category of documents sought with precision - the Tribunal will not reformulate requests which are insufficiently precise.

(ii) The request must establish the relevance of each document or of each specific category of documents sought in such a way that the other party and the Tribunal are able to refer to factual allegations in the submissions filed by the parties to date. This shall not prevent a party from referring to upcoming factual allegations (subsequent Pleadings/Memorials) provided such factual allegations are made or at least summarised in the request for production of documents. In other words, the requesting party must make it clear with reasonable particularity what facts/allegations each document (or category of documents) sought is intended to establish.

(iii) The Tribunal will only order the production of documents or category of documents if they exist and are within the possession, power, custody or control of the other party. If contested, the requesting party will have to make a case that it is likely that the document is indeed within the possession, power, custody or control of the other party.

(iv) If necessary, the Tribunal may also balance the request for production against the legitimate interests of the other party, including any applicable privileges, the extent to which the request places an unreasonable burden on the other party and the need to safeguard confidentiality, taking into account all the surrounding circumstances.

(v) Before making the decision, the Tribunal may exercise its discretion, at the request of a party, to hear oral submissions.

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The Tribunal may also appoint one or more experts on its own initiative, or at the request of a party. In this case, the Tribunal shall cooperate with the parties in respect of defining the expert's mission and of drafting questions to the expert. The Tribunal will be guided - but will not be bound - by Article 6 of the IBA Rules.

The Tribunal will also be guided - but will not be bound - by Article 5 of the IBA Rules which provides that in case the parties submit expert reports, the Tribunal may, if it deems appropriate, order that the party-appointed experts meet (either in person or by conference call) and confer on their reports. At such meeting, the experts shall attempt to reach agreement on those issues as to which they had differences of opinion in their expert reports, they will try to narrow them and they shall record in writing the issues on which they reached agreement or in relation to which they have been able to narrow their differences.' (Procedural Order, October 2013)

This insistence is intended to protect the flexibility of arbitration proceedings and, as explained by a tribunal in a recent award, guard against attempts to set aside awards on the grounds that the tribunal failed to follow the Rules:

'the President wrote to the Parties stating that the Arbitral Tribunal would prefer to retain some flexibility as regards the application of the IBA Rules on the Taking of Evidence in International Arbitration ("the IBA Rules") in this arbitration. The Tribunal's concern stemmed from a number of US court decisions where arbitral awards have been set aside on the basis that the arbitral tribunal, despite having declared to be bound by the IBA Rules, had not strictly applied them. The Tribunal explained that the Preamble to the Rules specifically states that they are not intended to limit the flexibility that is inherent in, and an advantage of, international arbitration, and Parties and Arbitral Tribunals are free to adapt them to the particular circumstances of each arbitration. The Arbitral Tribunal therefore suggested that Article 3.6 and Article 5.3 of PO1 should state that the Tribunal shall be "guided but shall not be bound" by the IBA Rules.

The Parties agreed with the Tribunal that it was in their best interests that the Tribunal retain some discretion in relation to the IBA Rules and so it amended Article 3.6 and Article 5.3 of PO1 to reflect this change. … the Parties jointly sent the Arbitral Tribunal a finalised version of PO1 which incorporated the Arbitral Tribunal's suggestions in relation to the IBA Rules.' (Interim Award on Jurisdiction, December 2014)

2. Document requests

If the documents required by a party to support its claim are not available to it, they may need to be requested from the other party. One tribunal recalled that this should be the sole purpose of document requests and that they should not be used as a means of obtaining documents to contest claims:

'that the document production procedure does not aim at enabling the parties to obtain documents relevant to the outcome of the dispute simpliciter, but rather documents without which they would not be able to prove their respective allegations;

that, therefore, a document requested in order to dispute the opposite party's allegations does not meet the criteria set forth in Procedural Order No. 1 and/or the IBA Rules' (Procedural Order, May 2013)

The nature of document requests was further elaborated on by another tribunal as follows:

'12. It is important to note that the disclosure procedure provided for in the IBA Rules is intended to be specific and limited. Although it is generally undisputed that international arbitrators have the power to order the parties to produce documents, it is in fact most unusual to proceed to document disclosure to the extent admissible in some common law courts. Although Article 20(5) of the ICC Rules affords considerable discretion to a tribunal when ruling upon the production of documents, a party has no right to disclosure of documents and it is left to the tribunal to decide on a case by case basis how much, if any, disclosure should be allowed.

13. Against this background, the Tribunal now turns to three particularly significant factors in its decision on the Respondents' disclosure application: firstly, the relevance and materiality of the requested documents, secondly, the specificity of the requests set out in the Respondents' application and, thirdly, the burden of proof in this arbitration.

Relevance and materiality

14. Typically, the relevance and materiality of a document or category of documents may only become apparent after the completion of the written procedure. At this stage, the parties themselves are the best judges of which documents should be produced. The affirmation of counsel for the objecting party, whose good faith is assumed, that the documents in question are neither directly relevant nor material, while not determinative, has to be accorded weight.

15. In the present case, the Tribunal has denied certain of the individual requests made by the Respondents, purely and simply, as being irrelevant and immaterial. This ruling, however, is made without prejudice, thus allowing the parties to submit another application at a later date when the Tribunal, in the light of subsequent written submissions, may be in a better position to make a conclusive determination on the relevance and materiality of the documents requested.

Specificity and proportionality

16. The specificity of the requests and a determination of the extent to which searching for and collating documents requested may constitute an "unreasonable burden" are relatively easier for a tribunal to determine, even in the midst of an ongoing case.

17. As seen below, the Tribunal has denied a number of the Respondents' requests on the ground that they do not ask for a "narrow and specific" category of documents or are overly broad and unduly burdensome to produce.

18. The often labelled request for "any and all documents" or "all documents", unless followed by the description of a specific document or category of documents, often runs the risk of falling outside the minimum standards of specificity for document production and may also constitute an unreasonable burden. The Tribunal has accordingly concluded that some of the requests at issue fail for this reason.

19. In this connection, it is not for the party opposing a broadly crafted request to speculate as to which specific document or documents are required on the part of the requesting party in terms of the latter's burden of proof. Rather, it is the duty of the party requesting a document or category of documents to articulate with sufficient particularity the specific document or category of documents it requires in order to discharge its burden of proof in this arbitration.

Burden of proof

20. The Tribunal notes that relevance and materiality must be considered from the perspective, inter alia, of whether the requesting party actually requires the document sought in order to discharge its burden of proof. If the Respondents are of the view that the Claimant's Statement of Claim Memorial and accompanying witness statements and expert evidence are deficient because, for example, the Claimant has failed to provide supporting documents, they may so aver in their Statement of Defence Memorial. It will then fall to the Claimant to address this argument in its Statement of Reply Memorial. The Respondents will have other opportunities in their Statement of Rejoinder Memorial and at the oral hearing to argue that the Claimant has not discharged its burden of proof.

Continuing nature of obligation to disclose

21. The Tribunal reminds the parties that the obligation to disclose requested documents is of a continuing nature, and a party that subsequently learns that it possesses or obtains possession from another source of a class of documents previously required to be disclosed to the other party, has a duty to make an immediate disclosure.

Adverse inferences and costs sanctions

22. As stated above, at this stage of the proceedings, the parties themselves are the best judges of which documents should be produced and the Tribunal has to be guided, to a large extent, by the affirmation of counsel that documents requested are neither directly relevant nor material. It is appropriate that the Tribunal should point out that it would be entitled to draw an adverse inference if a party refused or failed to produce a document on the grounds of irrelevance or immateriality and it later appears that such a document is relevant. Equally, the Tribunal can take into account the irrelevance of document requests when making its final determination of the costs in the proceedings.' (Procedural Order, July 2010)

The consequences of ignoring or misusing document requests, to which the tribunal refers in the final paragraph, are discussed at greater length in several other cases below.

3. Good faith

The IBA Rules begin and end by recalling that the taking of evidence should be conducted in good faith. In a case in which the claimant requested a complete rehearing of witnesses on account of alleged irregularities by the respondent in the preparation of statements in English from Korean witnesses, the tribunal found such a request to be disproportionate:

'32. The thrust of the Claimant's submission was that this was not a translation issue but an abuse of process issue. The basic contention was that the Respondents' lawyers were testifying in place of the witnesses because the lawyers had prepared English scripts for witnesses of limited English proficiency and after filing, had the English version translated into Korean for review by the witness. The complaint was that this process remained undisclosed by the Respondents until discrepancies between English and Korean versions emerged at a later date of the hearing. The Respondents' lawyers had instructed the witnesses to sign the statements without material changes.

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36. The Claimant sought to rehear all evidence viva voce without witness statements including evidence in-chief, cross-examination, re-examination and Tribunal questioning. Nothing was said in these written submissions as to how much time or money would be spent on this repetitive exercise. The submission was unadorned with any consideration of the Tribunal's convenience or availability. The Claimant referred to on the IBA Rules and Article 18 of the UNCITRAL Model Law on Arbitration as requiring the taking of evidence to be conducted in good faith with each party entitled to know in advance of the hearing the evidence on which the other party relied. The only legal authorities cited by the Claimant were mostly administrative law cases when the right to a fair hearing had been denied by various tribunals or organisations. No case was cited when a complete retrial had been ordered on similar sorts of grounds to those advanced, either in a case before a court or in an arbitration.

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44. In their submissions before the Tribunal, the Respondents characterised the Claimant's application as a transparent attempt to re-try its case after a "disappointing performance" at the merits hearing. The application went beyond any reasonable response to the unfortunate translation issues which had no material effect on the outcome. They expressed alarm at any suggestion of a conspiracy on the part of lawyers, parties or witnesses.

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60. The Respondents should have been more careful - particularly when preparing the statements in English for those witnesses who were not completely comfortable with the English language. They should also have recorded, as suggested by the IBA Rules, that the statements had been prepared in English. Such an early indication might have saved a lot of subsequent sound and fury.

61. A viva voce re-run of the Respondent's evidence without written statements of what any witness would say in evidence-in-chief falls contrary the IBA Rules which suggest that the opposite party should usually have a statement of what a witness is likely to say.

62. The Tribunal cannot ignore the extra cost of the proposed restricted hearing. The cost of the arbitration to date must be enormous. Both sides deployed a large number of lawyers, experts and assistants of various sorts for long periods. The Claimant seeks that the complete record of the Respondents' evidence to-date be struck out and also an order that no expert could rely on the Respondents' testimony actually given. That latter request would inevitably lead to all experts being recalled. The time required for the further hearing is open-ended.

63. No authority in point is cited by the Claimant to justify this extraordinary order. No case was cited, where, after an arbitration had proceeded for 3 weeks before an experienced Tribunal with cross-examination and a plethora of complicated technical evidence, such a re-hearing was ordered on relatively slim grounds. The notion of proportionality of remedy, measured against the breach, must be appropriate.

64. Although the Respondents' procedure for providing the evidence of the Korean witnesses was not ideal, many of these witnesses had been involved in international projects around the world where English was spoken. Many were highly-trained professionals who might be thought to have some independence of thought. Some were executives of Korean companies which do business worldwide. So the idea of considering an English version of their brief of evidence would not have been completely alien to them.

65. Moreover, each witness has filed a detailed affidavit which essentially says that the Korean translation of the English statement prepared by the lawyers represented his evidence. The Tribunal cannot in effect say that these witnesses were blindly-obedient automatons who swore affidavits and gave oral evidence without appreciating and meaning what they said.

66. Having considered all the documentation produced …, the Tribunal refuses to grant any of the orders sought by the Claimant.

67. The Tribunal is satisfied that the Respondents' Korean witnesses produced evidence to the hearing which each had approved. Those who were called to testify before the Tribunal further confirmed what they and the others had deposed to in their affidavits i.e., that they had approved the Korean versions of their various witness statements.

68. That is not to say that the Tribunal approves of the method of evidence-gathering employed by the Respondents. A Korean version should have been presented first to each witness - not an English version - especially to those not fully conversant with the English language. Moreover, as the IBA Rules suggest, each witness should have stated the language in which his statement had been prepared.' (Procedural Order, August 2014)

In its final award, the tribunal considered that, although the respondent did not seek costs in relation to the translation errors, they were 'entitled to some consideration when faced with an extreme application by the Claimant for a complete rehearing of all evidence orally'.

4. Cost implications

More than one tribunal has referred to the fact that the parties' conduct in the taking of evidence may have an impact on costs.

'The Tribunal wishes to remind the parties that it will be guided by the IBA Rules and so will be disinclined to grant over-wide requests. There should be specificity and relevance as required by the Rules. The Tribunal's present view is that some requests are over-wide in many respects. The Tribunal is not using the United States system of discovery/disclosure. Where a request is prima facie too wide, e.g. unlimited dates, then a party can say it wants as a pilot study, documents between dates X and Y. Once these have been reviewed, the requesting party can decide whether it wishes to make, with justification, a request for more. The parties are reminded that where a party is not adopting the restricted approach of the IBA Rules, there may be cost consequences.' (Procedural Order, October 2013)

The principle that misconduct in relation to the taking of evidence should be sanctioned through costs has been referred to by parties in an attempt to reduce their liability for costs.

'Claimant asserts that Respondents' conduct is relevant to the Tribunal's decision on costs. Claimant refers to Article 9(7) of the IBA Rules, which provides that where "a Party has failed to conduct itself in good faith in the taking of evidence … the Arbitral Tribunal may take such failure into account in its assignment of the costs of the arbitration". Claimant states that Respondents have engaged in bad faith conduct, including their failure or delay in disclosing documents, and have been largely responsible for the costs incurred in the proceedings.' (Final Award, November 2013 (footnotes omitted))

In the above case, the claimant succeeded in its claims. The arbitral tribunal ordered the respondents to pay two-thirds of the costs of the arbitration and reimburse half of the claimant's legal and other costs, but without saying what, if any, impact the respondents' alleged misconduct in the taking of evidence had on its decision.

In the case below, the tribunal dismissed the losing parties' attempt to obtain an award of costs in their favour based on alleged improper conduct by the claimants in the taking of evidence:

'Respondents argue that [Claimants] propounded improper discovery requests that did not comply with the IBA Rules, with its request …, which included over 90 requests and certain ones that the Tribunal had already rejected in Phase I as improper. In particular, Request No. 18 was identical to Request No. 13 in its Phase I document requests, seeking a broad range of documents …, which the Tribunal had rejected. The Tribunal denied more than half of the 92 requests. Further, … [Claimants] asserted that Respondents' document production was deficient and required production of the missing documents by midnight of that day, necessitating a search by Respondents of their own document production to identify the documents that [they] had already produced, a task that Respondents view as being [Claimants']. Finally, Respondents argue that they had to seek the Tribunal's intervention to receive an adequate level of detail with regard to [Claimants'] privilege claims.

Respondents also argue that Claimants hindered [Respondents'] ability to defend [themselves] by refusing to provide [Respondents] with unredacted copies of key documents at the centre of Claimants' remedies case in Claimants' opening Phase II Memorial.

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The Tribunal starts with the presumption that Claimants are entitled to their costs because they were the prevailing party in the patent infringement phase of the proceedings.

Respondents draw attention to Claimants' behaviour in the document exchange process leading up to Phase II, where Claimants made a large number of document requests which the Tribunal denied or allowed only in part. In view of the accelerated schedule that was being followed, this may have been onerous for some at the time, but with the benefit of hindsight, and bearing in mind the complexity of the case, the Tribunal takes the view that there was nothing highly unusual about the way in which the Phase II document production process unfolded. The only incident where the Tribunal is prepared to credit Respondents' allegation is when [Claimants] withheld or redacted a significant number of documents, alleging duties of confidentiality owed to third parties that, as later came to light, a Tribunal order could lift. The President of the Tribunal did eventually order production when Respondents sought relief from the Tribunal. Any prejudice [Respondents] may have suffered as a result, however, was immediately averted through an amendment to the timetable that gave Respondents the preparation time that they had lost, without giving Claimants extra time or causing a change in the basic structure of the timetable.

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Based on the foregoing, the Tribunal rejects Respondents' claim of cost recovery for Phase II and finds in favour of Claimants.' (Final Award, October 2015 (footnotes omitted))

5. Tribunal's discretion in assessing evidence

Arbitral tribunals have regularly insisted on the freedom they enjoy when assessing evidence.

'Before entering into the details of the merits of the case, the Arbitral Tribunal stresses that it has carefully examined all the evidence submitted in writing or orally by each Party in the course of this arbitration, including the documents produced and the testimonies of the fact and expert witnesses called, as well as all the arguments made in each Party's submissions, even though they have not been reproduced below in extenso.

The Arbitral Tribunal also points out that, pursuant to § 22 of Procedural Order No. 2 and Article 9 § 1 of the IBA Rules (2010) which the Tribunal may take into consideration, it is within its discretion to assess the weight to be given to each piece of evidence submitted in the present case. For this reason, the Tribunal has not deemed appropriate to discard any specific testimony or document on the basis of one Party's criticisms thereof.' (Final Award, September 2014 (footnotes omitted))

'In the present case, Article 58 of the Specific Procedural Rules provides that the Arbitral Tribunal shall be guided by the IBA Rules on the Taking of Evidence in International Arbitration. Article 9(1) of these Rules is a codification of the principle of free assessment and weighing of the evidence [cross-reference to Veit, Taking of Evidence, in Arroyo (ed.), Arbitration in Switzerland - The Practitioner's Guide, Kluwer Law International BV, The Netherlands 2013, Article 184 PILA N 64]. Pursuant to the case law of the Swiss Federal Tribunal, the free assessment of the evidence implies that an arbitral tribunal may decide on the evidentiary value of each document on record, regardless of which party has submitted it and particularly regardless of the purpose for which it was submitted. Arbitrators are not under an obligation to seek the view of the parties in the process of fact finding (DFT 4A_214/2013, consid. 4.3.1).' (Final award, March 2014)

The IBA Rules have often been cited as the framework within which the tribunal's freedom to assess evidence is exercised:

'Documentary evidence

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For its decision, the Tribunal will be guided by the IBA Rules on the Taking of Evidence in International Arbitration (hereinafter the "IBA Rules''). Before making the decision, the Tribunal may exercise its discretion, at the request of a party, to hear oral submissions.

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Evidence of expert witnesses

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The Tribunal may appoint one or more experts on its own initiative, or at the request of a party, In doing so, the Tribunal shall confer with the parties in respect to defining the expert's mission and of drafting questions to the expert, and will be guided by the IBA Rules.' (Procedural Order, April 2013)

'For its decision, the Arbitral Tribunal will be guided - but will not be bound - by Articles 3 and 9 of the IBA Rules of Evidence (29 May 2010 version) (hereinafter the "IBA Rules"). On this basis, the Tribunal considers that the following standards should guide its reasoning:

(i) The request for production must identify each document or specific category of documents sought with precision.

(ii) The request must establish the relevance of each document or of each specific category of documents sought in such a way that the other Party and the Arbitral Tribunal are able to refer to factual allegations in the submissions filed by the Parties to date. This shall not prevent a Party from referring to upcoming factual allegations (subsequent memorials) provided such factual allegations are made or at least summarized in the request for production of documents. In other words, the requesting Party must make it clear with reasonable particularity what facts/allegations each document (or category of documents) sought is intended to establish.

(iii) The Arbitral Tribunal will only order the production of documents or category of documents if they exist and are within the possession, power, custody or control of the other Party. If contested, the requesting Party will have to make a case that it is likely that the document is indeed within the possession, power, custody or control of the other Party.

(iv) If necessary, the Tribunal shall also balance the request for production against the legitimate interests of the other Party, including any applicable privileges, the extent to which the request places an unreasonable burden on the other Party and the need to safeguard confidentiality, taking into account all the surrounding circumstances.' (Procedural Order, October 2014)

6. Admissibility of statements by absent witnesses

The two contrasting findings below provide examples of the kinds of circumstances that may or may not justify disregarding the statement of a witness who failed to appear at a hearing, as provided in Article 4.7 of the IBA Rules. The final hearing in this case took place in London.

'The Respondents served factual witness statements from the following individuals …

[A]: the Claimant required his attendance but he did not attend the final hearing. The Claimant applied for exclusion of his statement. At the final hearing the Tribunal decided to admit his statement … The reasons for doing so are as follows: (i) [A] is based in the United States; (ii) he apparently has limited means. [A's counsel] submitted that [A] had insufficient means to arrange attendance or to arrange and pay for a video-link. While there is no evidence to that effect the Tribunal accepts that this is a relevant factor to consider; (iii) [A]'s statement does not go much if at all beyond confirming the contents of [Respondent 1]'s statement; and (iv) the weight to be attached to the statement remained a matter for submission. In my view there is a valid reason for [A]'s non-attendance for the purposes of Article 4.7 of the IBA Rules (which the parties agreed applied in this context). Even if that were not so, the matters identified at (i) - (iv) above constitute extraordinary circumstances to justify a refusal to disregard the statement completely.

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[B]: the Claimant required his attendance at the final hearing but he did not do so. The Claimant applied to exclude his statement. I decided to disregard this statement ... The reasons for doing so are that there was no valid reason for his non-attendance, for the purposes of Article 4.7 of the IBA Rules. Further there were no exceptional circumstances justifying the Tribunal nonetheless having regard to [B]'s statement. [B] was in the United Kingdom and could apparently have attended the hearing if he had so wished.' (Final Award, July 2011)

7. Scope of the IBA Rules

In deciding to admit evidence from a person not directly or personally involved, a tribunal affirmed that the IBA Rules do not exclude the admissibility of hearsay evidence.

'In submissions the Respondent has submitted that the written evidence of [Mr X] should not be admitted as evidence and should not be relied on if admitted. This is because the evidence is said to be hearsay, [Mr X] having had no direct or personal involvement in the relevant matters (in particular the audit). It is submitted that such hearsay evidence is inadmissible as a matter of Indian law. However, it seems to me that the admissibility of evidence is a matter to be determined by the procedural law, not the substantive law governing the arbitration. The procedural law of this arbitration is the law of Singapore.

As pointed out by the Claimant, under Singapore law, the Evidence Act does not apply to arbitration proceedings. However, as was recorded in Procedural Order No. 3, the IBA Rules on the Taking of Evidence in International Commercial Arbitration were adopted in the conduct of the proceedings and I am satisfied that those Rules do not provide for the exclusion of evidence on the grounds that it is hearsay in nature. Accordingly I admit [Mr X]'s evidence.' (Partial Award, November 2012)

In rejecting a respondent's requests for summary judgment and summary dismissal of claims, a tribunal affirmed that summary dismissal is not foreseen in the IBA Rules.

'Summary judgment or summary disposition of claims is not a concept known in international arbitration. First, the lex arbitri, the Tenth Book of the German Code of Civil Procedure, does not provide anything in this direction. According to Section 1042, para. 4, first sentence ZPO, failing an agreement by the parties and in the absence of provisions in this (Tenth) Book, the arbitral tribunal shall conduct the arbitration in such manner as it considers appropriate. Second, the ICC Rules of Arbitration do not provide for summary judgment or summary disposition of claims. Third, there is no practice of summary disposition or of rendering summary judgments in international arbitration: (i) Art. 2, para. 3 (b) of the IBA Rules on the Taking of Evidence in International Arbitration does not provide for summary disposition of claims, but only for an identification of any issues, for which a preliminary determination may be appropriate. Preliminary determination is not the same as summary disposition; (ii) nor do the "Techniques for Controlling Time and Costs in Arbitration" of the ICC Commission on Arbitration provide for summary disposition.' (Final Award, September 2012)