By Andy Ness
Sometimes Virtual Isn’t Enough
Site visits often play a significant role in large construction arbitrations. Construction drawings, pictures and even videos cannot match actually seeing the project in person and viewing the project elements and work areas involved in the dispute. What tends to make the most lasting impression on me from a site visit is a markedly improved appreciation of the project’s construction challenges, compared to what often appears deceptively straightforward from the construction drawings. From my experience, I welcome counsel suggestions that a site visit would be valuable.
Protocols Set Expectations & Rules for Site Visits
That said, arbitrator site visits involve a range of potential complexities, making it highly advisable to adopt a protocol to govern the site visit. The protocol sets expectations for all concerned, and the rules governing the visit. Until recently, there was little published guidance regarding protocols for arbitrator site visits. The ABA Forum on Construction Law’s 2023 book on Construction Arbitration broke that drought.[1] In Chapter 5 on Depositions and Other Discovery Methods, chapter author Jim O’Conner https://www.accl.org/member/oconnor-james-duffy/ provided a concise but highly useful five-page discussion of key topics to consider in drafting a site visit protocol.
The IBA Site Visit Model Protocol
Recently, the International Bar Association (IBA) Arbitration Committee took the further step of publishing an actual model protocol – the IBA Site Visit Model Protocol for International Arbitration.[2] While intended for international construction arbitrations, the model Protocol is equally useful for site visits to domestic U.S. projects. The “international” aspect of the model Protocol is that it is more detailed than needed for most domestic U.S. situations, reflecting the need for greater specificity when dealing with norms that vary more from country to country than is the case within the U.S.
The IBA model Protocol is nothing if not thorough in its coverage. It encompasses the two most common site visit situations arising during (or before) the arbitration process – a site visit by the arbitral panel, and a site visit for the purposes of aiding discovery. The latter situation can arise, for example, in a construction defects case, where the alleged defects were identified well after the Contractor demobilized from the site and the Contractor requests an opportunity to see and inspect the work at issue. Similarly, it can involve situations where a party needs to take samples or conduct testing, including destructive testing, where the existing conditions of equipment or completed work are in dispute.
Specific Provisions of the Model Protocol
The IBA’s thorough coverage of the potential issues involved in a site visit is set out in 13 Articles, most including alternative language options. The extensive Drafting Notes for each Article then highlight the considerations associated with the drafting choices in each Article. The model Protocol as a result runs to 37 pages. The 13 Articles included, and their basic coverage, are:
Article 1. Site Visit Protocol – specifying whether the Protocol will be a party agreement or a procedural order in the arbitration.
Article 2. Participants – listing the participants either by title or name, any limitation on the number of participants, and providing for substitutions as needed.
Article 3. Remote Participants – whether any or all participants will participate remotely, and responsibility for providing the necessary technology.
Article 4. Time and Place – setting out the date and time of the visit and defining the area within which it will take place.
Article 5. Purpose, Scope, and Itinerary – identifying the specific itinerary to be followed (the tour route and stops, as shown on a site plan included as a schedule), as well as specific activities that may be included such as introduction, safety briefing, and wrap-up meeting.
Article 6. Sampling, Inspection, and Testing – identifying any activities of this nature that will be conducted during the visit.
Article 7. Preparatory Work – identifying any preparatory work required for the visit, such as providing access or preparation for sampling, and who is responsible for the preparations.
Article 8. Transport, Security, and Logistics – who is responsible for what in terms of getting to the site, providing security and personal protective equipment (PPE), and identifying applicable safety requirements and the terms of any liability waiver to be signed by participants.
Article 9. Guiding Principles – duty of good faith and cooperation regarding the visit, avoiding ex parte communications, speaking with non-participants such as construction workers or operators, allowing or prohibiting testimony or argument during the visit, and avoiding interference with site operations as much as possible.
Article 10. Evidence – preserving attorney-client privilege for conversations during the site visit (which have a much greater chance of being overhead by others in this context), use of photos and notes taken during the visit as evidence, and whether statements made during the visit will be admissible as evidence.
Article 11. Compliance with the Protocol – handling objections raised during the visit, and any agreed sanction for violating the protocol terms.
Article 12. Costs of the Site Visit – defining any costs to be shared and costs to be borne by the party incurring them.
Article 13. Post-Site Visit Matters – sharing of photos and videos taken during the visit, as well as any documents obtained at the site, and whether the parties are allowed to submit a post-visit report as evidence.
Adapting the Model Protocol to a Typical U.S. Arbitrator Site Visit
Due to its length and detail, the primary task in adapting the IBA model Protocol to a U.S. arbitration site visit is in deciding what provisions of the model are unnecessary. For purposes of a U.S. arbitration panel visit, most of these Articles can usually be reduced to a sentence or two. In many instances Articles 3, 6 and 7 can be omitted entirely. Most of the other Protocol terms should not be difficult matters for the parties to agree upon.
The most important items on which to focus attention will generally be the definition of scope and itinerary in Article 5, and Article 9’s alternatives regarding statements in the nature of testimony during the site visit: “Oral pleadings or testimony on the merits of the Parties’ claims and defences [shall] [shall not] be allowed during the Site Visit.”
As to this last choice, prohibiting any comments on the merits of various claims during a site visit is the preferred alternative in almost every instance. Statements and explanations should be limited to basic matters of fact – the features and functionality of what is being examined at the moment, how it operates, and the like. A knot of people standing on a construction site or in an operating facility is rarely an advantageous place to hear testimony or argument. It also gives rise to questions as to how those statements will be recorded or weighed by the arbitrators in the absence of cross examination.
Resources For Conducting Site Visits
The IBA has issued a number of useful guidance documents on the conduct of international arbitrations, most notably the very influential “IBA Rules on the Taking of Evidence in International Arbitration” (2020). https://www.ibanet.org/MediaHandler?id=68336C49-4106-46BF-A1C6-A8F0880444DC. The Model Site Visit Protocol is a significant and very useful addition, for use in both international and domestic construction arbitrations.
[1] IBA Arbitration Committee “Site Visit Model Protocol for International Arbitration” (September 2024), https://www.ibanet.org/document?id=Arbitration-Site-Visit-Model-Protocol-for-International-Arbitration
[2] Andrew Ness and John Foust, editors, CONSTRUCTION ARBITRATION, THE ADVOCATE’S PRACTICAL GUIDE (ABA Forum on Construction Law 2023). See Recommendations and Resources https://theconstructionadrtoolbox.com/recommendations/.
