Nick Oury and Tania Forichon | Herbert Smith Freehills
In international arbitrations concerning physical infrastructure – particularly construction projects – tribunals are often invited or otherwise request to visit the site of the project to assist their understanding of the issues in dispute. The International Bar Association (“IBA”) has recently published a Model Protocol to govern how site visits are planned and conducted.
Background
Under both the IBA Rules on Taking of Evidence and the ICSID Arbitration Rules, the tribunal is expressly granted the power to carry out inspections, including to visit the site of dispute as it deems appropriate. However, site visits remain relatively rare, with only 10 cases being reported since the inception of ICSID arbitration up until 2020.[1]
Historically, site visits by tribunals have provoked disagreements between parties regarding (among other things) timing, access, cost, and participation of lawyers. In an attempt to address these issues, on 10 September 2024, the IBA Arbitration Committee (the “Committee“) published the Site Visit Model Protocol for International Arbitration (the “Model Protocol“). It is anticipated that the guidance provided by the Model Protocol will be welcomed by the arbitration community as a way to reduce the scope for party disagreement at this stage in the arbitral process.
The Model Protocol
The Model Protocol is intended to help parties avoid common issues that arise in the practical conduct of the site visit and reduce the risk of “disputes within disputes“. It comprises a comprehensive set of default clauses based on international best practice, which govern key issues that are likely to arise, with accompanying drafting notes. It is non-exhaustive, does not prescribe any thresholds, and is designed to be tailored according to the site visit in question as well as the scope and purpose of the visit.
In its own words, the Model Protocol provides a “strong starting point” for the drafting of a site visit protocol, and addresses a wide range of issues including the purpose, scope and itinerary of the visit, preparatory work, transport, costs and post-site matters. Further, the Model Protocol does not prescribe the form that the Site Visit Protocol should take. It can be either (i) a Party agreement; (ii) a procedural order issued by the Arbitral Tribunal; or (iii) a hybrid of the two (the Arbitral Tribunal issues a consent procedural order).
Among the issues the Model Protocol addresses, the following are of particular note:
- The mode of participation of the parties (Article 3)
The Model Protocol envisages that participants may attend in-person, remotely, or in a hybrid format (i.e. where some participants join in-person and some remotely). The Committee also notes that automated aerial vehicles or drones may supplement or enhance a site visit, and that the use of virtual reality and augmented technology for evidence visualisation is “inevitable”. While this is welcome and encourages less costly ways to “visit” a site, parties will need to ensure that they are complying with the local regulatory legal framework (for example, a commercial drone license with the GCAA is required to fly a drone in the UAE) and protect the integrity of the proceedings and evidence.
- Time and place (Article 4)
The time and place of the visit can be a very important issue between the parties, and the drafting notes for Article 4 provide some guidance to the parties as to certain common considerations. For example, availability of the tribunal and legal teams can affect the timing of the site visit. As the proceedings progress, their availability may be more limited and it is therefore generally advised to consider the possibility of a site visit at the outset of the arbitration (although this may not always be possible).
Further, Article 4 also advises that site conditions due to changes in the weather, local cultural and religious considerations (e.g., Ramadan) and any travel restrictions will need to be factored into the decision.
There may also be instances where it is critical that the condition of the site remains untouched (for example, to allow a Tribunal to examine the status of abandoned or defective works before a new contractor takes over the project). Often, the preservation of the site in this way is time critical, meaning that the site visit needs to be carried out as soon as possible.
As to the area of the site visit, where the dispute involves a large project, the Committee recommends that parties to agree the geographical boundaries for the conduct of the visit (and appropriate technology can be used to do so).
- Purpose, Scope and Itinerary (Article 5)
The Model Protocol proposes that parties expressly agree on the purpose of the visit, the itinerary to be followed and the list of tasks to be undertaken during the visit to avoid any disagreement at the site visit itself. Notably, Article 5’s drafting notes set out specific “additional” tasks which may be appropriate depending on the industry of the dispute. For instance, in construction and engineering arbitrations, the parties may wish to include quality assessments related to the performance of the works, and interviews with technical personnel, and contractors involved in the project.
- Evidence (Article 10)
To mitigate the risk of conversations being overheard during the visit, there is a presumption under paragraph 1 of Article 10 that all communications between a party and its lawyers carried out in confidence during the site visit will be subject to legal impediment or privilege even if inadvertently overheard. Practitioners should give special consideration to the laws of privilege applicable to the arbitration as the laws of certain jurisdictions may not allow for communications to be protected on the basis of privilege. If legal privilege is not available, any communications between parties and their legal representatives should be minimised or carried out in confidence to prevent them from being overheard.
- Costs of the site visit (Article 12)
Article 12 has identified that parties should negotiate which costs should be shared and which should be borne separately (if any). The costs of the site visit (and its allocation) can be very high and thus become a critical issue for parties, particularly where, for example, public infrastructure needs to be closed off or shut down to allow the visit to proceed. This means it is essential for parties to make the relevant inquiries as to the steps and the associated costs involved at an early stage – and ideally before the visit is confirmed. In our experience, the costs of a visit would typically be shared unless the visit has been specifically requested by one of the parties.
Concluding remarks
The Model Protocol is a starting point in discussions for parties planning a site visit. It brings to the parties’ attention a number of key considerations to be addressed to avoid disagreement at (what is usually) the early stages of the arbitral process.
Importantly, the Model Protocol does not suggest a preferred way for the parties and the Tribunal to adopt a site visit protocol in the course of the arbitration. As set out above, there are a number of forms it can take and the parties can tailor the technical and logistical details to their particular circumstances. Whilst the form of the Site Visit Protocol may not be critical, it will be important for parties (and the Tribunal) to engage with the issues and identify potential areas for disagreement at an early stage as soon as the need for a site visit has been identified.
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