Pauta 54.pdf - ICC México

Final Report on ConstructionIndustry ArbittrationsDocument Management33. Material such as pleadings, submissions, extracts from the key primary documentation, witness statements andreports from experts should be loaded on a CD-ROM. [Paras 16, 53-55, 64]34. The tribunal should require the parties in any event to organise the documents so as to avoid duplication and toenable them to be accessed easily. Such a procedural direction will need to be clear and precise since this usefulpractice is not yet widely recognised. For example, whether photocopied or on disk, inter-party correspondence(including instructions, requests for instructions and the like), the agreed records of meetings, programmes,agreed summaries of measurements, agreed summaries of valuations, drawings and other technical documentsought to be contained in separate indexed files with the pages individually numbered so that additions can bemade simply. [Paras 53-55]Witnesses35. Subject to legal requirements and the wishes of the parties, evidence that is not contained in a document andwhich is necessary in order to prove or disprove a point in issue must be presented by means of a writtenstatement from the witness, in that witness's own words (unless the witness is not able to do so), verified andsigned by that witness. Where the evidence is not in the language of the arbitration an accredited translation mustbe provided. [Para 56]36. It is usually sensible to provide for supplementary or additional statements of evidence of fact necessitated by theintended evidence of the other party (including expert evidence) to be exchanged within a short time of theprincipal statements so that all the evidence is in writing. [Para 56]37. All witness statements should be exchanged in good time before the preparation of any pre-hearingsubmissions. [Para 56]Experts38. Where one or more members of the tribunal have been nominated or appointed for their expertise there shouldnormally be no need for the tribunal to duplicate that expertise by appointing its own expert, unless theassessment of part of the case might take a considerable time. A decision of this kind has or may have importantimplications so it should normally be discussed with the parties. [Paras 15, 58]39. It is always prudent to clarify whether or not expertise is required, why it is required, by whom it will provided andwhen. [Para 59]40. The tribunal should only appoint its expert if it is necessary since the costs of the tribunal's expert have to be borneby the parties. On the other hand in many cases it will be cost-effective to do so for the opinion of that expertmight render unnecessary any further expertise or it may identify the points upon which evidence or reports fromwitnesses or experts may be required. [Para 59]41. The tribunal ought to decide whether it will appoint its own expert before it issues the provisional timetable underArticle 18.4 since the timetable will affected by the work of that expert. [Para 59]42. The tribunal may need to differentiate between truly independent experts and consultants retained by the partiesto assist in the preparation of the claim who may produce reports and give evidence in the arbitration and, forexample, to be sure that any information obtained by such a consultant expert from a party and used in theformation of his evidence and opinions has been communicated to the other party and to the tribunal. [Para 60]PAUTA 60