IBA Launches Site Visit Model Protocol for International Arbitration

The Site Visit Model Protocol provides a comprehensive set of standard clauses designed to address the most important issues that are likely to arise during a site visit. Each article is accompanied by drafting notes and commentary covering topics such as the selection of participants; the purpose, scope, and itinerary of the site visit; rules for the collection and admission of evidence; and general guiding principles.

PURPOSE AND SCOPE

The Site Visit Model Protocol outlines the twofold purposes of site visits: to provide context for the arbitral tribunal and to facilitate evidence gathering.

A visit to the project site allows the tribunal to gain a deeper understanding of the physical and operational aspects of the dispute, which provides a more comprehensive context for the parties’ submissions. Furthermore, site visits enable the collection of evidence that might otherwise be inaccessible, thereby ensuring that both parties have equal access to crucial information. The Site Visit Model Protocol highlights the need for comprehensive, preemptive discussions to avoid procedural complications and guarantee cost-effective site visits. It provides a starting point for parties to tailor the protocol to their particular circumstances, taking into account the distinctive context and industry of the dispute.

PARTICIPANTS AND ROLES

The document provides comprehensive guidance on the composition of the site visit team, including the roles and responsibilities of party representatives, experts, and arbitrators. The protocol specifies that the nature and purpose of the site visit will determine the necessary participants.

For example, if the objective of the visit is to gather evidence, the input of experts will be essential. Additionally, the protocol also allows for flexibility in participation, including remote attendance via audio or video links. This flexibility is particularly useful in accommodating participants who may face logistical challenges. The protocol includes provisions for handling technological disruptions to ensure that remote participation does not hinder the process.

The participation of the arbitral tribunal shall be carefully considered by the parties. It may facilitate the site visit and ensure compliance with the site visit protocol. However, the participation of the arbitral tribunal increases the number of issues to be dealt with, including what communications, if any, should be permitted between the arbitrators and other participants during the site visit.

LOGISTICS AND PREPARATORY WORK

The Site Visit Model Protocol includes comprehensive instructions on logistical arrangements, which are a key feature of the protocol. These include transportation, security, and health and safety measures.

The protocol places significant emphasis upon the necessity of thorough preparatory work to guarantee seamless access and the smooth execution of the site visit. This preparatory work may entail obtaining the necessary permissions, arranging for safety equipment, and ensuring that all participants are briefed on the itinerary and tasks.

SAMPLING, INSPECTION, AND TESTING

The protocol details the procedures for the collection and handling of samples, including the maintenance of the chain of custody and the use of independent laboratories for testing. It provides guidance on how to document and preserve evidence collected during the site visit. This guarantees the credibility of the evidence and its reliability in the arbitration process.

Furthermore, the protocol addresses the need for transparency and collaboration between parties throughout the sampling and testing processes. By establishing transparent standards and procedures, the protocol helps to avoid disputes over the handling and interpretation of evidence.

GUIDING PRINCIPLES AND COMPLIANCE

The Site Visit Model Protocol establishes a framework to guarantee fair, efficient, and productive site visits. It outlines key principles, including good faith cooperation, transparency, and cost-efficiency, to ensure a smooth and productive process.

Any dispute that is not explicitly covered by the site visit protocol should be resolved by referring to the guiding principles. These principles set forth procedures for addressing and resolving objections during the site visit, ensuring procedural integrity. They are designed to foster a collaborative environment and to minimize the potential for conflicts that could disrupt the site visit.

In addition, the protocol includes provisions for ensuring compliance with the agreed-upon procedures, including potential sanctions for noncompliance. This helps guarantee that all parties comply with the protocol and that the site visit is conducted in an efficient and orderly manner.

POST-SITE VISIT MATTERS

The protocol sets forth the requirements for sharing records and data obtained during the site visit. It allows for the submission of written site visit reports, which may be used either as evidence or treated as a submission in the arbitration proceedings the site visit supports. This ensures that all pertinent data is accessible to the arbitral tribunal and the parties, enabling well-informed decision-making.

The document underscores the significance of transparency and prompt information sharing to prevent delays in the arbitration process. Its clear guidelines for post-site visit activities guarantee that the evidence gathered during the site visit is effectively integrated into the arbitration proceedings.

IMPLICATIONS FOR PRACTITIONERS

The Site Visit Model Protocol is an invaluable resource for legal professionals engaged in international arbitration. By providing a structured approach to site visits, it helps to mitigate risks and enhance the arbitral tribunal’s understanding of the project.

We recommend that practitioners familiarize themselves with the Site Visit Model Protocol and consider its application in their arbitration cases to ensure compliance with best practices. The protocol’s comprehensive guidelines can assist practitioners in navigating the complexities of site visits, ensuring efficient and effective conduct. This can result in more informed decision-making and more equitable arbitration outcomes.

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The IBA’s Site Visit Model Protocol represents a significant step in the procedural management of international arbitration. It serves as a robust starting point for the parties to build upon. However, it is not a one-size-fits-all solution; it must be thoughtfully tailored to meet the specific requirements of each case.

At McDermott, our team of highly skilled international arbitration practitioners focuses on the construction sector, and we are well equipped to assist with any construction-related disputes. We deliver efficient and effective legal solutions, and one of the tools we leverage is the Site Visit Model Protocol. By incorporating this innovative approach into our practice, we ensure a smoother arbitration process, offering enhanced clarity, informed decision-making, and a streamlined resolution.