The Role of Experts in Construction Arbitration The Role and Development of Arbitration 16 May 2017

Case Study

Case Study

Case Study

Case Study

KCAB International Arbitration Rules Article 27. Experts What is an Expert? KCAB International Arbitration Rules Article 27. Experts 1. The Arbitral Tribunal may appoint one or more experts to report to it on specific issues to be determined by the Arbitral Tribunal and communicated to the parties. A copy of the expert’s terms of reference, established by the Arbitral Tribunal, shall be communicated to the parties. 2. The Arbitral Tribunal may require a party to give the expert any relevant information or to provide access to any relevant documents, goods or other property for his inspection. 3. Upon receipt of the expert’s report, the Arbitral Tribunal shall send a copy of the report to all parties and shall give the parties an opportunity to comment on the report. A party may examine any document on which the expert has relied in preparing such a report.

BANI Arbitration Rules Article 23. Evidence and Hearings What is an Expert? BANI Arbitration Rules Article 23. Evidence and Hearings 4. Witnesses If the Tribunal considers it necessary, and/or at the request of either party, expert witnesses or witnesses as to facts may be summoned. Such witnesses may be required by the Tribunal to present their testimony in a written statement first, on the basis of which the Tribunal shall determine, on its own or upon request of either party, whether oral testimony of any such witness shall be required.

CIArb Essential Roles of an Expert Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration:

Essential Roles of an Expert Concern that experts may provide opinions based on what the party instructing them wants to achieve. However, self- regulating as a reputation of an expert survives far beyond a single case. Not unlike the reputation of arbitrators.

Essential Roles of an Expert Knowledge Must have thorough knowledge of the area upon which he is to give expert evidence. Including the pros/cons Understanding Must have the ability to understand the facts of any given scenario; also apply his knowledge to those facts. Academic reasoning and discussion is not enough Must be able to apply that knowledge Issue of Academics v. Professionals

Essential Roles of an Expert Expression and Clarity Cannot be over-stated! If expert fails to express thoughts to Tribunal = no assistance. Expert not there to teach Tribunal, but to assist in the resolution of the dispute. Must be clear in expression and thought in both written expert report and at oral hearing.

Essential Roles of an Expert Expression and Clarity Cannot be over-stated! If expert fails to express thoughts to Tribunal = no assistance. Expert not there to teach Tribunal, but to assist in the resolution of the dispute. Must be clear in expression and thought in both written expert report and at oral hearing.

Quantum Experts Generally 3 types of Construction Experts: Technical Expert Delay Expert Quantum Expert Focus on Quantum Expert: Why? The best legal arguments (based on technical and delay expertise) will not help the client’s case, if the quantum calculations and presentations are ignored!

Quantum Experts Proof of Quantum Challenges: Sheer Volume of Documentation In construction, contractor’s record keeping obligations and standards are extensive. Thousands of documents. Need to identify, review and manage. Lawyers can assist as they will have in-depth knowledge of evidence.

Quantum Experts Which documents to submit to satisfy the legal burden of proof? Evidence that is: Relevant; Third-party generated; Contemporaneous; Original; and Properly translated.

Quantum Experts Multiple Claims Construction claims almost always involve multiple claims E.g., claims regarding: Variation claims; Claims for disruption; Claims for defects; Claims for unpaid work; Also involves multiple parties, from different industries and jurisdictions. Can result in multiple arbitrations against different parties.

Quantum Experts Care must be given to how claims are raised: Must look at the dispute clause: E.g., if claim must go through engineer first, then it cannot be raised in arbitration if Engineer has not made a determination.

Quantum Experts Calculations of various costs Costs typically include the following: Direct costs: Allocating costs incurred for the specific event. Challenge is to show extra costs as being above and beyond the project plan level, but also demonstrably attributable to the specific event giving rise to the dispute. Project and head office Overheads: Allocating overhead costs to the specific claim event that is seen to be reasonable and rational. (e.g., personnel flown to site for 2 months to deal solely with a single issue is not convincing).

Quantum Experts Profit margins: Establishing a reasonable gross or net profit margin that, but for the claim event, would have been earned on the project.

Hot Tubbing What is “Hot Tubbing”?

Hot Tubbing AKA “concurrent evidence” involves experts from the same discipline giving evidence at the same time and in each other's presence. PROS Allows Tribunal to compare differences on each specific issue (compare apples to apples); Less adversarial (than cross-examination), more inquisitorial; Produces a well-ordered hearing transcript.

Hot Tubbing CONS Takes away opportunity of counsel to cross-examine expert in detail; Important documents could be missed if Tribunal does not raise them;