Expert Witness in International Construction Arbitration

Need for experts in international construction arbitration: A UK contractor constructing an ore processing facility in a sub-Saharan African nation on behalf of a Canadian minerals company, who files a claim for UK￡1.45 million and seeks arbitration when the project owner refuses to settle, is an example of an international arbitration. Rising complexity of construction law has given way to a practice of appointment of experts by the arbitrating parties, as well as by the Arbitral Tribunals. The construction projects are both subject to mutual agreements, and the local laws. Thereafter, the dispute resolution is subject to the chosen jurisdiction which might be different from the local laws and also from the home jurisdictions of the contracting parties. This has created need for engaging experts both for evidence & opinion, and as members of the arbitral tribunal itself.

Types of Experts in Evidence: The parties engage/deploy experts either to discover & present a fact, or apply their subject matter expertise to present an opinion. Either ways, the expert evidence is in form of a report where the information/documents relied, the methodology adopted, the inferences drawn, etc. are laid out in a structured manner. The factual expert only states a fact that is “discovered” while the expert opinion is a creative skill which deduces inferences based on technical interpretation of various pieces of information

Appointment of Expert by Arbitral Tribunals: Arbitral Tribunals and/or the arbitrating parties themselves frequently deploy/engage subject matter expert(s) in the arbitral proceedings, for determination of facts and/or for professional opinion n a technical/legal matter. While members of the appointed arbitral tribunal together are experts in construction law as well as in technical aspects of construction project management, and are therefore capable of discerning the intertwined expert opinions and expert evidence adduced by the parties, the arbitral tribunal also (additionally) appoint experts.

Even where the expert(s) is (are) appointed by the arbitral tribunal, whether of their own or upon request by a party, the parties do remain involved in the expert selection (acceptance, acquiescence or rejection/challenge) as well as in appraising the conclusions of the report. In fact, where the party is entitled to demand appointment of expert by the tribunal, and the tribunal rejects such demand, this may (also conditional on subjective finding over relevancy of request) become grounds for such party to challenge an award of the tribunal. Still further, where the arbitral tribunal has discretion to regulate its own procedure (including appointment of an expert on an issue), any agreement among parties over the procedure to be followed by tribunal takes precedence, and supersedes the tribunal’s discretion. The rights of parties & tribunal, and their effect, are however guided by the choice of the regulations/rules governing the arbitration proceedings.

Law Governing Experts: The jurisdictional body of rules (LCIA, UNCITRAL, CIArb, IBA) governing the arbitral proceedings lays down the procedure & criteria of their appointment, their conduct & role, the methods for their examination & cross-examination, formats of their reports & testimonies, etc. For Ex. Para 2 in Article 25 of the ICC Rules of Arbitration, the Articles 17(3), 27(2), 28 (2) and 29 of the Arbitration Rules of the UNCITRAL, the Articles 5 & 6 of the IBA Rules, and the CIArb Protocol, lay down the principles in varying degrees of detail. Among them all, Chartered Institutes of Arbitrators (CIArb) Protocol and the International Bar Association (IBA) Rules supplement each other and when deployed in tandem (together) are seen as a sufficiently cogent & detailed body of regulations to govern the use of experts in arbitration proceedings.??

Appointment of Experts by Arbitrating parties: The parties engage experts for making their first submissions to the arbitral Tribunal. Both the expert opinion (on causal-link between events, or extent of possibilities among various options) as well as expert evidence (say forensic diagnostic test results) together culminate in a report which also describes the documents/information that has been relied and the methodology adopted to draw the inferences/conclusions presented in the report. The parties also engage the experts for preparing the rebuttal of the expert report of the opposite party, and therefore often require their appointed experts to sit through whole of the arbitral proceedings. The parties therefore engage in detailed discussions and provide all such documents to the expert as the latter may require.

Rules of Evidence: The expert reports are their testimonies but are subject to cross-examination in a variety of ways. Depending on whether the expert witness is appointed for fact-determination (forensic examination of communication or payment documents or portions of site, or diagnostic testing to determine quality) or for professional opinion (with or without conducting any tests or forensic examination), the scope of cross-examination and the nature of cross-examination also varies. The scope would pertain to their conclusion, methodology, documents relied, their own experience in the subject matter, etc. It is generally accepted as of convention that communication between experts and the hiring party are privileged, and, that the expert report must only mention the documents that are relied not what all documents were consulted/referred. Not requiring the other parties’ expert to appear for cross-examination is not tantamount to acceptance of the expert report, and, not commenting on opposite-party’s challenge to expert-appointment by Tribunal cannot be taken as approval of appointment.

Mechanism for expert evidence appraisal: As regards methodology, in some cases, the experts are sequentially examined by counsel for appointing party and then cross-examined by the counsel for opposite parties, while in some cases, the experts first answer the query put forth by arbitral tribunal and concurrently the query put-forth by the parties. In other cases, the arbitral tribunal only witnesses/monitors the conference among the expert witnesses, without subjecting them to parallel cross-examination, however subject to agreement among all parties involved.

Frequently, in such cases joint expert witness meetings are organized where neither the parties nor the arbitral tribunal are present. In such circumstances, the determination of the issues by the arbitral tribunal may also get relegated to being an adversarial discourse where the experts are appointed by both - the arbitrating parties as well as the Arbitral Tribunal itself, and where the experts are motivated to defend their own publicly published theories. Further, since the cross-examination in such cases remains restricted to their identified common areas of disagreement, apart from the proceedings becoming an expensive affair, the other prominent hazard of expert appointment is the complete transfer of responsibility to record findings from the Tribunal on to the expert(s) appointed by parties and/or tribunal.