Large scale international infrastructure and construction projects always involve factual
questions of what, where and when. However, responsibility invariably turns on more
intricate questions of cause and effect and expert evidence is usually required, often
across more than one discipline. The expert phase is often therefore the most critical,
and sometimes costly, part of the arbitration process. In this article we give
some practical tips for managing party appointed experts based on our experience
of acting for both contractors and employers in infrastructure and construction and
engineering disputes across the globe.
Selection of party appointed experts
It goes without saying that it is important
to select the “right” expert. This means
ensuring not only that the expert has
the appropriate qualifications, technical
expertise and reputation in the relevant
field but also (if possible) suitable
experience of the dispute process and
of writing expert reports and giving
evidence in adversarial proceedings.
Credibility is the key consideration
however. It is vital that any expert has
the right technical experience and can
convey their expertise in a persuasive
and credible manner to a tribunal of
lay people, likely unfamiliar with the
topic, while remaining impartial and
uninfluenced by instructing counsel.
It also helps if the expert is collegiate
and good to work with. This is a delicate
balancing act. Not everybody possesses
the necessary interpersonal skills and
is able to engage a tribunal and explain
complex technical issues in a convincing
and credible manner.
It is always preferable, therefore, to
interview potential experts where
time permits. Test your expert. We
also suggest that you take soundings
from other individuals or practitioners
familiar with the expert.
It is also worth checking whether the
expert remains “active” in their relevant
field of expertise and to check on their
published writings – have they previously
written anything which conflicts with the
position they are adopting in the
arbitration? Likewise, make sure that the
expert has the capacity to take on the
appointment and is able to meet the
relevant procedural deadlines and attend the hearing.
Scope of the expert’s role
The expert’s remit should be clearly
and precisely defined in their written
instructions. This requires that the issues
in dispute are clearly defined between
the parties. Early meetings with your
expert as the case develops, and between
the experts once the case is afoot, can
help delineate the issues and points
of disagreement. It is therefore usually
advisable to instruct experts as early
The expert must also recognize that their
role is ultimately to advise the tribunal
independently rather than to advocate
the client’s position. This duty overrides
any duty to the instructing party.
The primacy of the expert’s
independence is recognized, for
example, in the IBA Rules on the Taking
of Evidence in International Arbitration,
which require expert reports to contain
a statement of independence from the
parties, their legal advisors and the
tribunal. The IBA Rules also contains
a duty to disclose any existing or past
relationships with any of the parties,
legal advisors or the arbitral tribunal.
It is not uncommon for experts to be
appointed at an early stage, during the
life of a project and/or to advise a party
on an ongoing basis of the strength of its
position. However, difficulties can arise if
the expert is subsequently asked to provide
independent expert evidence to a tribunal
during the course of an arbitration.
There is a risk that the expert may be
perceived as a “hired gun” lacking the
required impartiality to fulfil the role of
an independent expert witness. In all
instances, but in this scenario in
particular, it is important that the
expert’s instructions clearly scope out
their intended role and that they may
subsequently be required to act as expert
witness and therefore remain impartial.
An expert will typically summarize the
substance of their instructions in the
expert report and instructions given
through the life of a dispute may become
disclosable. Instructions should be
drafted with this in mind, in a neutral
tone without conveying any comments
on the merits/strategy of the instructing
party’s case on the technical issues.
The more objective and independent the
expert appears, the more credible they
are likely to appear in the eyes of the
tribunal. Experts should avoid acting as
advocates for the party appointing them
and should be encouraged to concede
points where it is appropriate to do so.
It is also important that experts not stick
rigidly to one fact scenario but be prepared
to consider a range of possible outcomes
depending upon the tribunal’s findings
on disputed points of fact or law.
Expert evidence should always be
rigorously tested by the instructing legal
team to ensure that the expert has been
objective and has properly considered
the contrary views/explanations
provided by the opposing expert. One
way of testing this is to ask whether the
expert would express the same opinion
if given the same instructions by the
Experts who ignore evidence which is
not helpful to their own party’s case or
consistently choose an interpretation
or approach that gives their instructing
party the “benefit of the doubt” will
inevitably run the risk that less weight
will be attached to their evidence by the
tribunal or that the evidence of the other
expert will be preferred wholesale.
Credibility is always the key
consideration. And an expert’s lack
of credibility may bring into question
other aspects of the client’s case and the
client’s and counsel’s own credibility.
Giving of evidence
The general aim in every case is to
simplify what is often difficult technical
evidence into an easily understandable
format. This is equally true for written
reports, technical presentations (which
are increasingly used during hearings)
and for responding to cross examination.
Counsel can play an important role in
ensuring that written expert reports are
presented in a sensible, easy to follow
format and appropriately summarized.
However, the expert must not delegate
his opinions to others. The expert must
own the report.
Expert witness conferencing or “hot
tubbing” has become increasingly
popular in international arbitration
hearings. This is a process in which
experts provide evidence concurrently
(as opposed to sequentially) with the
tribunal leading a discussion. Rather
than traditional cross examination,
experts are brought together before the
tribunal and are encouraged to discuss
and debate their differences.
This can be an effective and constructive
means of obtaining relevant evidence
on technical matters and can save time
and costs. At the very least, a genuine
analysis of the issues is promoted and
experts are often more “honest” with
their views when confronted by a peer.
It does, however, require the tribunal
to be extremely well prepared to ensure
that the process stays on focus and is
Tribunal appointed experts are more
regularly seen also. Sometimes opposing
experts can take fundamentally
incompatible approaches, not engaging
each other’s views and opinions.
Party-appointed experts are therefore
usually asked to confer and attempt to
reach agreement and record in writing
the points of agreement/disagreement
between them. However, a third expert,
appointed by the tribunal can help break
deadlock in such situations.
A tribunal appointed expert will add to
the cost of proceedings though, as the
parties will still retain their own experts.