In his keynote speech, Alexis Mourre described technical disputes as those arising under a contract and in which some of the most important issues are of a technical or engineering nature. He argued that arbitration of these disputes are likely to benefit from tailor-made proceedings, and he suggested five areas of departure from standard practice that could help achieve this effectively:
- Site visits: Where technical issues are the nature of the dispute, early visits should be encouraged, including via virtual means, in order for the tribunal to visualise the complex technical issues presented in the case.
- Early access to information: Claimants sometimes lament that material documents, whose existence and importance are common knowledge, remain in the sole possession of the respondent until the proceedings are in a relatively advanced stage, after the exchange of the main submissions. Parties and tribunals should consider the advantage of making some document disclosure available at the initial stage of proceedings, especially as to claimants, in order to avoid unnecessary delays and ensure equal access to information.
- Tribunal experts: Most tribunals in international cases will expect the parties to appoint their own experts and will be reluctant to appoint a tribunal expert. This is usually based on several factors, including (i) the difficulty to manage another expert, (ii) the risk of further challenges, (iii) the expert’s potential lack of skills in conducting an adversarial process, (iv) the increased cost and complexity of the proceedings, and (v) the fear to be bound by the conclusions reached by the expert. However, tribunals may want to consider appointing an expert for highly-specialized technical or scientific issues.
- Early consultation on technical reports: The tribunal could consult with the parties at an early stage of the proceedings to ensure consistency of format for all reports, based on the same template, for easy reference and comparison. Further, the consultation could extend to the instructions for the experts on highly technical questions.
- Early decision of technical issues: where feasible, it may be useful to frontload technical issues that constitute a threshold to liability, including through bifurcation of the proceedings.
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