Market Talk: Calling on expert evidence

12 December 2020
HKA offers expert services in risk mitigation and dispute resolution in the capital projects and infrastructure sector

Q&A with Daniel Jackson, director of HKA

Q. How can arbitration and dispute tribunals, and lawyers get the best out of expert evidence?

Proactive case management in arbitration can increase the value of expert evidence by narrowing the differences between experts prior to the hearing.  

This is something which a skilled expert will attempt to achieve independently; however, where the Tribunal provides a common set of questions or parameters, the risk of misalignment of the experts’ methodologies or in the application of data is substantially reduced. 

Requesting the experts to produce a joint report to set out the matters agreed and disagreed between them can also extract value from expert evidence. 

Then, if needed, reply reports should be sought to set out, in the alternative, what their opinions would be if the opposing expert’s principles and methodologies were accepted by the Tribunal. 

These methods not only encourage the experts to combine their efforts in reaching consensus, but allow the Tribunal and lawyers to focus on the material contentious matters.  

Equally, expert witness conferencing, or 'hot-tubbing', enables each expert to engage with the tribunal and each other in a discussion of the differences in their opinions.  In complex arbitrations, this approach is effective in facilitating deeper examination of the contentious issues and gaining transparency in the experts’ perspectives. 

Q. Are there any barriers to the efficient use of expert evidence or sourcing of expert witnesses in tribunals? 

Partiality on behalf of the expert has long been a problem for the efficient use of expert evidence in arbitration. 

This often derives from the expert developing an unconscious bias in favour of the party that appointed them. Not only does this prejudice the credibility of the expert, but it undermines his/her parties’ case.  

It can also be said that the financial benefit of frequently working for the same party may amount to an expert owning a financial interest in the outcome of the arbitration. 

In my experience, Tribunals are well equipped to identify partisan experts and attach the appropriate weight to any evidence suspected of being presented with bias.  

As an expert, the importance of the obligation to act impartially is crystallised in Article 257 of the UAE Penal Code, which provides that an expert may be subject to criminal prosecution if he/she confirms untruths in evidence. This acts as a not-so-gentle reminder of the expert’s duty to the Tribunal and emphasises the importance of sourcing experts with integrity.  

At HKA, we place significant emphasis on the duties of our 500+ experts. Whether providing expert advisory, expert determination or expert witness services, HKA offers the unique, multi-disciplinary service that combines quantum, engineering, delay, disruption, damages and government contracts analysis.  

Q. Where do the costs associated with calling upon expert evidence currently fall in tribunals in the region, and are there any structural issues with the way in which these costs are distributed? 

Institutional rules such as DIFC-LCIA Rules of Arbitration, UNCITRAL Rules and ICC Rules confer powers to the Tribunal to award legal fees and other costs including experts’ fees. However, this power is not to be assumed in the rules of all institutions. 

The DIAC Rules of Arbitration, for example, allow the Tribunal to award the “costs of the arbitration”; however, the definition of which does not extend to expenses incurred by the parties in preparation of their pleadings.  

As a result, the power of Tribunals to award legal costs in DIAC arbitrations is an issue which has often been contested before the UAE Courts, and in some cases legal and expert fees have been disallowed.  

Therefore, parties may benefit from including the right for Tribunals to award legal and expert fees in the arbitration agreement or terms of reference. 

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