Pauta 54.pdf - ICC México

Final Report on ConstructionIndustry Arbittrations43. The tribunal ought either to draw up the terms of reference of the parties' experts (on the basis of the issuesknown to it) or to require the parties to agree a statement of the issues and of the facts (both agreed andassumed, e.g. as set out in the witness statements) upon which expert evidence is required. If the tribunal does notdraw up the experts' terms of reference the experts should provide the tribunal with their terms of reference orinstructions as received from their clients (subject to privilege) so as to ensure the expert is properly directed andmotivated and that the opinions are reliable. [Para 60]44. The experts, if independent of the parties, should discuss their views with each other preferably before preparingtheir reports, e.g. at a meeting (possibly chaired by the tribunal or, if the parties agree, a designated member)since most independent experts eventually agree about most things. [Para 60]45. The tribunal must ensure that it is clear whether or not agreements between the experts bind the parties. If thetribunal were to chair the discussion it may be difficult for a party to question such an agreement. Reports must beconfined to questions or issues where no agreement can be reached. [Para 60]General46. Whenever appropriate all applications about procedural matters and which do not involve questions of substanceshould be made and decided by correspondence or telephone without a hearing. [Para 46]47. Submissions should be numbered or arranged to match the submissions of the other party. [Paras 34, 62]48. All submissions prior to a hearing should be in writing. [Paras 61-62]49. All submissions should be full but concise and they should be delivered at the earliest possible occasion. [Para 62]Hearing50. The tribunal should either require the parties to decide how the time available within the period of the hearingshould be allocated (in which case the parties will then be held to their agreement) or the tribunal should itselfdecide and adhere to a strict timetable, unless it is not just to do so. The tribunal must treat each party fairly, butthat does not mean equality in terms of witness time, as opposed to the time for statements or submissions. [Para63]51. Prior to the hearing the parties should be required to agree which documents will be needed at the hearing,which (if not already conveniently available) should be put on CD-ROM or assembled in the form of files (seeabove). Pre-hearing submissions, witness statements and any reports from experts and should be crossreferencedto the documents. [Para 64]52. Either only a nominal time should be allowed at the hearing for oral opening statements or there should be noopening statements. [Para 62]53. Factual witnesses should be heard before the consideration of experts' reports since the questioning of a factualwitness may require an expert to modify or withdraw an opinion or provisional conclusion. [Para 65]54. The time available at a hearing need not be used for closing submissions as they are frequently best presented inwriting within a short period after the conclusion of the hearing. The period within which closing writtensubmissions are to be delivered should be set by the tribunal well before the hearing (e.g. in the provisionaltimetable) and certainly in good time prior to its conclusion. No further submissions will be considered after thatperiod. [Para 66]PAUTA 61