One Size Fits All? Comparing Civil Law and Common Law Approaches to Evidence and Its Application in International Arbitration.

Rekha Rangachari, Kabir Duggal and Adam Masurovsky

Arbitration International Volume 37, Issue 3, September 2021

September 15, 2021

Until recently, the most common source concerning the taking of evidence in international arbitrations has been the International Bar Association (IBA) Rules on Taking of Evidence in International Arbitration. The IBA Rules have been updated periodically including most recently in 2020 demonstrating its flexibility and wide acceptance. However, rising concerns about costs and delays due to the adversarial nature of the IBA Rules has led to increasing scrutiny and criticism. A consequence of these criticisms was the formation of the Working Group that led to the creation of the Rules on the Efficient Conduct of Proceedings in International Arbitration (the ‘Prague Rules’). This article seeks to discuss the differences between the IBA Rules and the Prague Rules with a focus on the evidentiary process. Both set of rules begin with differing starting assumptions. However, we argue that the IBA Rules and the Prague Rules, while emerging from, and representing the ideals of two different legal systems, have a lot in common. The difference may not ultimately be as wide as one might initially envision.