Construction claims very often involve a high proportion of technical issues. Expert evidence can be crucial to the success or failure of a claim and it should go without saying that the appointment of an appropriate expert at the right time and with suitable experience is of paramount importance in any legal proceedings. An expert's input can have a marked effect on the conduct of those proceedings, particularly when preparing the claim and during joint discussions on the evidence with the other party's experts. For example, at the start of a claim, an expert's view of a technical issue can help the lawyers assess whether it is strong enough to include in the claim. In the longer term this could save time and costs.
Acknowledging the integral part experts play in the arbitration process, the London Court of International Arbitration (LCIA) has issued a note reviewing the various ways in which experts are used in international arbitration proceedings and the opportunities those methods present for more effective and efficient decision-making.
The LCIA registers around 300 new arbitrations each year, most of which involve experts. Most parties are international and drawn to English law, a London seat and the LCIA's reputation for quality dispute resolution, built in part on its access to "an unrivalled pool of experts". The LCIA note focuses on the diverse ways that experts' wide-ranging disciplines are used and highlights the issues that can arise. In summary:
- Experts can provide invaluable support behind the scenes in preparing a claim to ensure it is clear and well supported. They also help draft the terms of experts who will be appointed to give evidence. Such experts should beware conflict issues if they go on to act as arbitrators.
- Experts can be party-appointed to provide evidence in the form of an expert report and then orally at the hearing. The risk that each party's experts work in isolation from each other is normally reduced by the tribunal asking the experts to work together and (often) to produce a joint report. This approach still leaves the problem of how to deal with fundamental incompatibilities in the experts' evidence. Witness conferencing (or hot-tubbing) is one solution – provided the tribunal is comfortable enough with the issues to ask the right questions.
- The tribunal can appoint an expert to provide a non-partisan view and help bridge the incompatible positions of the parties. Such an approach requires the tribunal to understand the issues well enough to make a suitable appointment. If the parties also appoint experts, the tribunal-appointed expert can help resolve differences between them.
- In technical cases, an expert can be appointed to determine the issues. This is "expert determination" and not arbitration and the end result will be enforceable in accordance with the applicable national and international standards. An expert determination will not work if the underlying issues are mainly legal. "Split" clauses that provide for different types of dispute resolution according to the type of dispute should be carefully drafted to ensure that expert determination is used in the correct circumstances – and to ensure a suitable remedy is available.
- An expert can be appointed as a member of a tribunal panel although it is sometimes difficult for parties to agree on what type of expert is needed (unless an institutional appointment is required).
The LCIA recommends that parties recognise the issues and difficulties that can arise with each of the above options. In particular, it recommends that lawyers and advisers become more familiar with the issues with which experts have to deal and that experts themselves "be flexible enough to facilitate discussion with the tribunal and the other experts".
You can read the full LCIA note here.