NEWSLETTER-2019-metin

160 NEWSLETTER 2019 Test and Site Visits In disputes regarding unsuitability or malfunction of a plant, equipment or work, tribunals will analyze what tests have been done, whether the results are agreed upon, and whether there is a need for further tests. Tribunals may also order new and required tests. How- ever, tribunals should seek the parties’ consent, and any tests made without consent, according to the Report, should be non-destructive. Cooperation and consent of the parties are very important in conduct- ing site visits and tests; therefore, it is useful to determine these issues at an early stage, and should be included in the first procedural order. Site inspections/visits and tests should be jointly held by the in- dependent expert appointed by one of the parties, together with other expert(s). The Report also suggests that a site visit by the tribunal, together with the tests, can be beneficial. What should take place on the site visit should also be agreed to by the parties. Bifurcation Bifurcation, or splitting a case, can be a beneficial method in complex construction cases where the parties have a number of claims and counterclaims. Tribunals generally split the case into two tranches, those being “liability” and “quantum.” For construction cases, the Re- port suggests to split the case into three as “jurisdiction,” “liability,” and “quantum.” The Report further recommends hearing the parties’ arguments on causation and quantification, in order to understand how the claims and/or counterclaims have arisen before splitting the case. The decision to bifurcate should be taken if it does not create a finan- cial burden on the parties and, overall, it is sensible and more efficient. Experts 10 Expert reports are frequently used in construction arbitrations, and the tribunals heavily rely on expert reports in their decisions. Tri- 10 Erdem, Mehveş : “ Expert Witnesses in International Commercial Arbitration” Erdem&Erdem Newsletter, August 2016, http://www.erdem-erdem.av.tr/publica- tions/newsletter/expert-witnesses-in-international-commercial-arbitration/ (Ac- cess date: October 2019).