Global Vantage: International Bar Association Arbitration Committee’s Model Protocol For effective site visits during proceedings

In September 2024, the International Bar Association Arbitration Committee released a Site Visit Model Protocol (Model Protocol) aimed at providing a set of best practice rules for conducting site visits during international arbitration.

Background

Prepared by a working group comprising a diverse group of contributors, including lawyers, experts and arbitrators, the Model Protocol sets out information on arranging and conducting site visits in international arbitration based upon experience and best practice.

The Model Protocol

Comprised of 13 Articles, the Model Protocol aims to assist parties to an international arbitration to undertake a useful, efficient, and cost-effective site visit. The authors have also included accompanying drafting notes which help to provide a frame of reference for why a particular Article has been included and things to think about for parties preparing their own protocol arrangements.

Clearly the authors anticipate that parties will consider the Model Protocol well ahead of any proposed site visit, as most of the Articles are aimed at establishing the various parameters of the site visit before it takes place.

The Model Protocol’s key focuses are:

1. who, what when and where – various Articles cover issues such as the role of the attendees, including any experts, where the visit will take place and when;
2. the scope of the site visit – i.e. what part(s) of the site will be shown to the parties;
3. what those on the site visit are permitted to do – including what the parties can record, collect, or test themselves. The drafting notes to Article 5 are particularly helpful, as they provide some considerations to take into account depending on the type of visit. For example:
   1. the location of the visit – if the visit is to an office, what access to documents and systems will the parties have? Or if the visit is for the purpose of testing a particular item or system, what methods of testing or sampling will be allowed?
   2. if the arbitration is concerning a specific industry/sector, the drafting notes provide general advice that can guide parties about what they need to think about ahead of agreeing to a site visit. While the Model Protocol is particularly suited for construction and engineering disputes, it can also be applied to general commercial disagreements.
4. establishing who is responsible for what ahead of time – e.g. items such as the cost of attendance, availability of equipment, and logistical considerations (such as accommodation and travel arrangements);
5. the admissibility of collected data – determining what use can be made of the observations, recordings, and data, etc. obtained during the visit, and whether privilege applies to the information obtained;
6. apportionment of costs between the parties; and
7. agreeing any post site visit obligations on the parties, such as an agreement to share information gathered or a site visit report.

Commentary

The Model Protocol is a welcome tool in the kitbag for any party involved in international arbitration, whether they be a lawyer, expert, or arbitrator. By putting the focus on the scope of the site visit up-front, parties can have clarity on the overall structure and approach to the site visit and avoid unnecessary surprise or additional disputes, for example when someone wants to do or see a particular thing on site or is denied from doing so.

The Model Protocol is also drafted in such a way that parties can adopt whatever they feel necessary or helpful based on their case and provides an overall framework for tailoring their own protocol arrangements to suit their particular needs. A benefit of the Model Protocol is that it offers parties specific points to consider for future site visits in one place, i.e. so they don’t need to start from scratch each time. However, whether it will be widely selected and used by parties (or even ordered by arbitral tribunals on proceedings) is yet to be seen.

If you have any questions on the content of the Model Protocol or this short update, please contact the authors. For additional information or support on international arbitrations, please visit the Beale & Co website or contact Antony Smith.