The Protocol contains 13 default clauses that are accompanied by drafting notes, which provide the parties with further information and suggestions on related procedural matters ("Drafting Notes"). The Protocol is not meant to be comprehensive and will have to be adapted on a case-by-case basis, in consideration of the context of the specific dispute and industry. Its overall aim is to offer a structured framework designed to guide parties and tribunals in conducting site visits effectively and efficiently.

The Protocol does intentionally not address reasons or thresholds to agree or order a site visit. Rather, it is intended to serve as a starting point for the parties' discussion where a site visit has already been agreed or ordered.

While site visits can provide valuable insights into the physical and operational context of a dispute and facilitate the gathering of evidence, they have the potential to add significant time and cost to the proceedings. Therefore, it is essential for parties to carefully plan and define the scope of any site visit through a predetermined protocol, ensuring efficiency and minimizing procedural disruptions.

Below we set out the key elements of the Protocol and highlight important aspects that need to be considered when planning and conducting site visits.

Participants and Roles

When preparing for a site visit, the parties should carefully consider the required participants and their roles (Article 2 of the Protocol).

The selection of the participants usually depends on the purpose of the site visit and may include some or all of the parties, tribunal or party-appointed experts, and members of the arbitral tribunal. If the aim is to gather evidence, the involvement of the experts will be essential to ensure a thorough and accurate evaluation of the technical aspects of the project.

As the Drafting Notes point out, including the arbitral tribunal in the site visit can encourage greater compliance with the Protocol. However, parties should be mindful that this may require additional arrangements such as determining the extent and nature of permissible communications between arbitrators and other participants (notably the parties) during the visit.

When defining the list of participants, the parties will have to consider various practical issues. For instance, depending on the circumstances, site visits may require safety inductions. Parties are well advised to set aside sufficient time for such inductions and organize personal protective equipment for all participants if required. Site visits may also require the participation of third parties that are not involved in the dispute, especially when the site is under the control and authority of such third party (typically the owner or operator). Depending on the purpose of the site visit and the circumstances of the dispute, third parties may also include insurers, sampling specialists, technicians, equipment operators, or audio and video recording professionals.

The Protocol also sets out the framework for hybrid or remote site visits (Article 3 of the Protocol).

Time and Place

Parties are encouraged to determine the necessity of a site visit as early as possible to facilitate efficient planning and integration into the arbitration timeline (Article 4 of the Protocol).

It is advisable to conduct any site visits prior to the evidentiary hearing (see also Drafting Notes to Article 4). This allows the arbitral tribunal to contextualize evidence and witness testimony presented during the hearing with its firsthand observations from the site without disrupting the arbitral procedure.

As for the place of the site visit, an agreement upfront as to the area where the site visit should take place may prevent future disagreements. That said, such an agreement might be difficult to accept for a party that has never been to the site (see also Drafting Notes to Article 4). As a solution, the IBA Arbitration Committee working group proposes to demarcate the area of the site visit by way of physical boundaries, maps, GPS coordinates, plans or drawings.

In our experience, parties sometimes have legitimate concerns about allowing third parties (often representatives of competing companies) onto their premises. A typical example would be original equipment manufacturers (OEMs) that may not want external persons gaining insights into proprietary manufacturing processes or other sensitive technical information. In such cases, parties could agree on no-go areas or restrict certain areas to a reduced number of participants or even for the tribunal's eyes only. The parties could also restrict the means of recording information from the site visit under Article 10 of the Protocol.   

Purpose and Scope

Article 5 of the Protocol reminds parties to determine and agree on the purpose of the site visit, including the list of activities on site to achieve the parties' goals.

Site visits may serve a wide range of purposes, such as collecting samples or data, conducting non-destructive or destructive tests, or observing a process such the commissioning of a plant or the manufacturing of equipment (Drafting Notes to Article 5).

Article 5(4) sets out a possible list of tasks, which the parties may consider when defining the schedule of the site visit. These tasks include the following: orientation and site access meeting for the participants, guided tour of the site, observing and process monitoring, opening up of the structures, sampling, surveying, document review, data extraction, inspecting and testing, interview of the site-based technical personnel to better understand the project and its operations, and wrap-up meeting for the Participants. Of course, the list of activities is not exhaustive and the parties may want to define the necessary tasks as specifically as possible considering the purpose of the site visit and all relevant circumstances. The Drafting Notes also provide helpful lists of potential additional types of tasks depending on the industry of the dispute (construction and engineering, manufacturing, mining and metals, energy). 

Sampling, Inspection, and Testing

To the extent the site visit serves the purpose of sampling, inspection and testing, Article 6 of the Protocol details the procedures for the collection and handling of samples. The provision addresses specific topics such as the number of samples that experts may collect, the possibility for any party to engage an independent and certified laboratory specialized in testing to inspect and test the collected samples, the type of container in which the samples shall be placed, or the designated entity that shall take custody of the samples for transit following collect.

In essence, Article 6 provides guidance on how to document and preserve evidence collected during the site visit.

Preparatory Work, Transport, Security, Logistics

Some site visits may require advance preparatory work, for example related to the access to the site or to facilitate work to be undertaken by experts. This may lead to tensions between the parties where such preparatory creates the opportunity for tampering with evidence or causing undue delay. Accordingly, to the extent any preparatory work is required, it may require separate regulation. Article 7 of the Protocol provides that in such cases, the parties shall agree on the scope of preparatory work and identify the party responsible for the completion of each step in the preparatory work, including deadlines. The parties may also want to list the relevant third-party specialist companies who should be on site or available at the time of the preparatory works (Drafting Notes to Article 7).

In addition, Article 8 of the Protocol encourages parties to set out the responsibilities for some of the key logistical issues related to site visits, such as transportation and security, travel and visa, customs, or health, safety and environment requirements.

Evidence-Taking and Privilege

Parties are advised to establish at the outset what the evidentiary purpose of the site visit is, e.g. whether the site visit is intended to be a framework for assessing evidence or to become evidence on record. Article 10 of the Protocol has been drafted to provide model language for the situation where it is agreed or ordered that the site visit and records of the site visit are to become part of the evidentiary record (Drafting Notes to Article 10).

Considering the nature of a site visit and the risk that communications may be overheard, the Protocol clarifies that all communications between a party’s legal counsel and its participants during the site visit are presumed to be subject to legal impediment or privilege (Article 10 of the Protocol).

To ensure that records obtained during the course of the site visit are admissible as evidence, Article 10 of the Protocol provides that each party may record, whether by taking notes, photographs, videos, and/or audio recordings, the content of interviews with or statements by site-based technical personnel and the subject matter, provided that such records are created in compliance with the applicable legal privilege and/or any confidentiality agreement between the parties related to the site visit. Such records or their content may be used as, and admitted into evidence, subject to the arbitral tribunal's assessment of the evidence (Article 10 of the Protocol).

Guiding Principles and Compliance

The Protocol provides a set of guiding principles to ensure a fair, efficient, and productive conduct of the site visit (Article 9 of the Protocol). For example, the parties shall act in good faith, cooperate with each other fully and transparently, act in a timely and cost-efficient manner, and use best efforts to induce third parties' cooperation to achieve the purpose of the Protocol in the context of the arbitration.

Any dispute or issue that may arise during the site visit that is not explicitly regulated by the Protocol should be resolved by reference to these guiding principles. That said, in most cases, may already be embedded within the applicable arbitration rules, either in the institution rules or in the national arbitration law.

Article 11 of the Protocol provides that any objection to the manner in which the site visit is conducted must be raised as soon as reasonably practical with the tribunal. In the event a party raises an objection that, if upheld, would prevent or materially change the conduct of the site visit, the tribunal shall rule on that objection as a matter of urgency and in any case within a pre-defined time period so the site visit can continue and finished as scheduled. The parties should consider whether it might be appropriate to define consequences for non-compliance with the Protocol.

Costs of the Site Visit

The parties are encouraged to discuss and agree on which costs associated with the site visit shall be borne by the parties in equal amounts (e.g., for preparatory work, third-party costs, security) and which costs shall be borne by each party (Article 12 of the Protocol). The provision also includes a reservation of rights for each party to request from the arbitral tribunal an order on the allocation of costs and expenses incurred in connection with the site visit.

Post-Site Visit Matters

Article 13 of the Protocol ensures that after the visit, all relevant materials are shared among the parties. The provision specifies that each party should make available to the other any records collected during the visit within an agreed timeframe following the site visit.

In addition, each party may, in its discretion, file a written site visit report with their next written submission in the arbitration.

Conclusion

The Site Visit Protocol published by the IBA Arbitration Committee is a welcome addition to the existing frameworks for construction arbitrations, offering a comprehensive and flexible strcuture to streamline the planning, execution, and post-visit processes of site inspections in arbitration.

By addressing key aspects such as participant roles, timing, logistics, cost-sharing, and evidence handling, the Protocol ensures that site visits are conducted in a fair and efficient manner. Importantly, it minimizes procedural disruptions, thereby improving the overall arbitration process.

Parties are well advised to address these issues early in the arbitration process and to consult experienced counsel to ensure that their site visit protocol comprehensively addresses all critical aspects.

For assistance with drafting site visit protocols or for advice on the issues that may arise in relation to site visits, or construction disputes more generally, please contact our Schellenberg Wittmer International Arbitration and Construction Practice Group.