International: IBA Site Visit Model Protocol for International Arbitration published

07 Oct 2024    2 minute read
IBA Arbitration Committee Site Visits Evidence Gathering IBA Site Visit Model Protocol DR Featured Content

In brief

The International Bar Association's Arbitration Committee Working Group (“Working Group”), with contributions from experts on its drafting such as Baker McKenzie’s new Partner and Head of Dispute Resolution in Johannesburg, Michelle Porter-Wright, has developed a comprehensive Site Visit Model Protocol for International Arbitration.

The Working Group has developed this Site Visit Model Protocol for International Arbitration (“Model Protocol”) to help parties plan and coordinate their site visits. It outlines the Working Group’s view of the best international practices for conducting these visits.

Contents

In more detail

On 10 September 2024, the International Bar Association published its Model Protocol, prepared by the Working Group.

The main aims of the Model Protocol are to:

  • help parties plan and coordinate their site visits
  • share international best practice
  • assist the arbitral community in better understanding and regulating site visits to ensure understanding of the projects and access to evidence
  • be used as a starting point for discussions between the relevant parties once a site visit has been arranged

Importance and purpose of a site visit in international arbitration 

Site visits are an important procedural tool in international arbitration, and can serve two general purposes.

Firstly, a site visit can help an arbitral tribunal better understand the project and can provide important context for the parties’ submissions. In this case, a site visit could include walkthroughs of the site and site procedures, allowing the tribunal to ask questions to achieve a clearer understanding of the party’s operations.

Secondly, a site visit can support evidence gathering and facilitate equal access to evidence. This ensures the arbitral tribunal has a more complete factual record on which to base its award. In this case, the site visit may focus more on inspections, process monitoring, sample collection, or data extraction.

Importance and purpose of the Model Protocol

The Model Protocol has been created to be a starting point for party discussions once a site visit has been agreed or ordered. It considers the two different purposes of a site visit and shares best practices for parties discussing and organizing their site visit. The Working Group advises parties to use the Model Protocol as a basis for site party discussions to lower the risk of any “disputes within disputes” about the specifics of the site visit.

In order to guide and organize the parties’ discussions, the Model Protocol includes a series of standard clauses presented as 13 different articles, addressing key issues that may emerge. Each article is paired with drafting notes, offering the parties additional information and recommendations on procedural matters to consider.

The various topics covered by the articles include:

  • The participants involved in the site visit (Article 2)
  • The purpose, scope, and itinerary of the site visit (Article 5)
  • The preparatory work required before the visit (Article 7)
  • General principles for conducting the visit (Article 9)
  • The rules for collecting and admitting evidence (Article 10)

 The goal of the Model Protocol is to promote a fair, efficient, and productive arbitration process. 

Contact Information
Michelle Porter-Wright
Head of Dispute Resolution
Johannesburg
michelle.porter-wright@bakermckenzie.com

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