Pauta 54.pdf - ICC MÃ©xico

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Final Report on ConstructionIndustry Arbittrationsproceedings closed, as required by Article 22 of the Rules, that no new facts or opinions will be admittedthereafter, unless specifically requested by it. There is a tendency for parties to try to repair gaps in their cases bysubmitting new documents, statements and reports and to fasten on some pretext that the action was “authorised”by the tribunal (as provided by Article 22). If this occurs the tribunal should immediately send such submissionsback to the parties.Judge Humphrey LLoyd QCDr Nael G BunniMarch 2001ACKNOWLEDGEMENT OF CONTRIBUTORSThe Section acknowledges with thanks all the contributions that they received but particularly from the following. (Theyapologise if by inadvertence anybody has been omitted.)Max AbrahamsonJames M ArnottThe Hon Sir Ian Barker QC (for the New ZealandNational Committee)John BeecheyAlbert Jan van den BergJohn BlackburnDavid BrownPeter CaldwellYves DerainsDerek S FirthPierre M GentonJ-C GoldsmithJ J GoudsmitMartin Harman together with Tanya Melnyk, JulianCohen, Steven Carey, Gordon Bell, and Mark Roe(Masons, London)G Beresford HartwellMartin HunterWilliam HuyseGordon JaynesNeil KaplanPierre KarrerHelen Kenyon (and others at CMS Cameron McKenna,London)Tómas Kennedy GrantHelge Jakob KolrudDonald L. MarstonJames J MyersProfessor Fritz NicklischAlan RedfernColin ReeseJ RozemondSamir A SalehProfessor Pieter SandersChristopher R SeppalaAudley SheppardThe Swiss National CommitteeEsam Al TamimiJohn B TiederJohn Uff†Christian Wiegand.PAUTA 55
Final Report on ConstructionIndustry ArbittrationsSUMMARY OF MAIN RECOMMENDATIONS AND SUGGESTIONS(Cross-references are given to the principal paragraphs of the Report.)Composition of Tribunal1. The tribunal should be comprised of people with proven experience in seeing how an international arbitrationabout a construction dispute is carried through from start to finish. [Para 18]2. Sole arbitrators or chairmen should know how to write awards and should be able to construct an effectivemanagement framework for the arbitration. [Paras 17-18]3. Some familiarity with computers is a distinct advantage, if not a necessity, and basic word-processing skills arenow virtually indispensable. [Paras 15-16]4. At the tender stage of projects whose value is not more than, say, US$20 million, the parties should considerwhether their interests would be best served if a sole arbitrator were appointed. They should also considerappointing a sole arbitrator if the value of the claim is not large. [Para 19]The Steps Available prior to Terms of Reference5. The tribunal should obtain a chronology of events from each party, especially if there are claims for delay ordisruption. It should itself prepare a composite chronology from the material provided by the parties which itshould then send to the parties and take up any discrepancies with them. The tribunal should thereafter maintainthe chronology, amending it as the case develops, circulating the revisions, and asking the parties to resolve anygaps in it. [Para 21]6. The tribunal should not hesitate to seek information to enable it to create organisational charts, layouts, andglossaries or to obtain other clarification where it is needed for the purposes of defining a claim or an issue. [Para22]7. Amplification of submissions may be needed where, for example, a party has not anticipated a point that hasbeen taken by the other party or which the tribunal sees as likely to arise, e.g.7.1 a point which might affect the jurisdiction of the tribunal, e.g. the identification of a contracting party;7.2 where it is unclear whether notice of intention to claim has been given when it was required by thecontract;7.3 where a claim or defence is or may be barred in law, e.g. by prescription or limitation;7.4 where it is not clear whether a claim has been referred to, considered or decided by the Engineer, DAB orDRB, or whether notice of dissatisfaction was given (e.g. under the FIDIC conditions);7.5 where the amount of the claim is unclear;However a tribunal is not obliged to seek clarification for the purposes of drawing up the Terms of Referenceas in some cases such points should be left until later. In particular a tribunal should be careful before it asks aparty to clarify the legal basis of a claim or defence as it may be for the tribunal to determine such a matter orfor the other party to submit that there is no such basis. [Paras 22-23]The Terms of Reference8. A list of issues will be needed in all but the simplest case, not least because without such a list it will not bepossible to decide on the future course of the arbitration. [Para 26]9. In construction arbitrations, to define the issues in broad terms may not help the parties (or the tribunal) whereclear guidance is needed as to the issues for which proof or argument is required. Extracting those issues at anearly stage is the primary task of the tribunal. For these reasons it is sensible for the tribunal to invite each party toPAUTA 56
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Boletín Informativo del Capítulo
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CARTA DEL PRESIDENTEEstimados Socio
Page 5 and 6: La solución de controversias en el
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Page 9 and 10: Introducción a los Dispute BoardsI
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