AIPA’s commitment to innovation in arbitration extends to the issuance of rules aimed at enhancing the understanding of complex technical matters in international arbitration proceedings.

At the core of this initiative are the “Rules on Technical Assistance in International Arbitration”, which address the growing demand for a clearer grasp of complex technical issues in international arbitration.

These rules offer a streamlined and effective approach, allowing arbitral tribunals to access specialized technical information while maintaining procedural efficiency and fairness.

Parties have the option to incorporate these rules into their arbitration clauses or in Terms of Reference signed at the start of arbitration proceedings.

RULES ON TECHNICAL ASSISTANCE IN INTERNATIONAL ARBITRATION

(Adopted by a resolution of the AIPA Board 27 June 2022)

Preamble

The present Rules pertaining to technical assistance for Arbitral Tribunals are intended to provide a tool that will supplement arbitration legislation and procedural rules that apply to the conduct of an international arbitration involving the resolution of complex technical issues.

More specifically, the present Rules are intended to provide Arbitral Tribunals with a means to obtain a better understanding of complex technical matters. For the avoidance of doubt, these Rules are not intended to encompass assistance with respect to the performance of tasks pertaining to the establishment of the facts of the case nor secretarial or other tasks pertaining to the administration of the arbitration proceedings.

These Rules are designed to address primarily complex issues in technical matters but may be adapted, notably for use with respect to non-technical issues.

Article 1 – General

1.1 The Arbitral Tribunal is entitled at any time during the proceedings to have recourse to an individual of its choice with a view to enabling the Arbitral Tribunal to acquire a better understanding of complex technical matters relevant to the issues in dispute, by virtue of such individual’s specialised skill, knowledge or experience, in order to facilitate the performance by the Arbitral Tribunal of its jurisdictional function.

1.2 Any individual appointed by the Arbitral Tribunal pursuant to the present Rules is hereafter referred to as a ‘Technical Assistant’.

1.3 Technical Assistants must act at all times upon the Arbitral Tribunal’s instructions alone, and under its supervision. The Arbitral Tribunal remains responsible for a Technical Assistant’s conduct during the arbitration.

1.4 Any assistance provided by the Technical Assistant may be given orally or in writing and shall not be characterized as evidence.

1.5 The Arbitral Tribunal may not abandon or delegate any part of its jurisdictional, notably its decision-making, functions to a Technical Assistant in any circumstances, and shall remain in full control of the proceedings.

Article 2 – Appointment

2.1 If the Arbitral Tribunal intends to have recourse to a Technical Assistant, it shall inform the parties of the matters with respect to which it wishes to receive assistance. The Arbitral Tribunal shall seek the parties’ views on any candidate envisaged by the Arbitral Tribunal. The Arbitral Tribunal may also seek proposals from the parties or from a specialised organisation as to who should be appointed as a Technical Assistant. For this purpose, the Arbitral Tribunal may establish the requirements for potential Technical Assistants, such as qualification, availability, costs, and communicate them to the parties. The Arbitral Tribunal shall not be bound by the candidates proposed by parties or the specialised organisation.

2.2 Prior to any appointment, the Arbitral Tribunal shall submit to the parties the proposed Technical Assistant’s curriculum vitae, together with a declaration of acceptance, availability, independence and impartiality.

2.3 The Arbitral Tribunal shall allow the parties not more than fourteen calendar days from receipt of the proposed Technical Assistant’s curriculum vitae, and declaration of acceptance, availability, independence and impartiality to submit to the Arbitral Tribunal any objection that either of them may have to the proposed appointment together with their reasons and any related documentation. Thereafter, the Arbitral Tribunal shall decide on the objection without delay.

Article 3 – Procedure

3.1 Requests for assistance will be provided by the Arbitral Tribunal orally or in writing to the Technical Assistant and will not be disclosed to the parties unless, as an exception, the Arbitral Tribunal decides in its discretion to disclose such requests to the parties.

3.2 The Arbitral Tribunal shall be at liberty to provide the Technical Assistant with any written pleadings and evidence on the record of the arbitration.

3.3 The Arbitral Tribunal and the Technical Assistant are entitled to communicate orally or in writing at any time on the matters with respect to which assistance has been requested. Such communications between the Arbitral Tribunal and the Technical Assistant shall not be disclosed to the parties, unless, as an exception, the Arbitral Tribunal decides in its discretion to disclose, in part or in whole, such communications to the parties.

3.4 The Technical Assistant may suggest to the Arbitral Tribunal that it forwards to the parties written requests for clarification with respect to any matter relevant to the issues in dispute. Each party shall be allowed a reasonable opportunity to comment in writing on any response made by a party to any such request.

3.5 After consultation with the parties, the Arbitral Tribunal may instruct the Technical Assistant to meet with the parties’ respective experts and/or their technically qualified representatives, in order to clarify facts and arguments pleaded by the parties, and/or to identify areas of agreement or disagreement. Such meeting shall be recorded in a report by the Technical Assistant. This report will be provided to the Arbitral Tribunal and disclosed to the parties. The parties shall be allowed a reasonable opportunity to comment upon it. The Arbitral Tribunal shall not be obliged to accept or adopt any of its contents.

3.6 After consultation with the parties, the Arbitral Tribunal may decide that the Assistant shall be present at a hearing as an observer. The Technical Assistant shall not be subject to questioning by the parties at a hearing or otherwise.

Article 4 – Remuneration and Payment of Technical Assistant

4.1 Pursuant to the appointment of the Technical Assistant, the Arbitral Tribunal shall take such measures as it considers appropriate to settle, in consultation with the parties, the terms of the Technical Assistant’s remuneration, including the payment, in equal shares, of any advance the Technical Assistant may reasonably request. In case of difficulties, the Arbitral Tribunal shall issue such directives as may be warranted in the circumstances, in particular so as not to unduly delay the proceedings.

4.2 The fees and expenses of the Technical Assistant form part of the costs of the arbitration and shall be dealt with as such in the award.

Recommended wording when it is intended to use the Rules

The Arbitral Tribunal is authorised to have recourse to a Technical Assistant at any time during the arbitration proceedings in accordance with the Rules on Technical Assistance in International Arbitration published by the Association for Innovative Practices in Arbitration.

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Association for Innovative Practices in Arbitration