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How to Maximise the Use of Experts in Arbitration Proceedings

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The LCIA have reviewed how experts' wide-ranging disciplines are used in international arbitration and how experts can be used to promote more effective and efficient decision making.

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, particularlywhen 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 viewof 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 reviewingthe various ways in which experts are used in international arbitration proceedings and the opportunities those methods present for more effective andefficient decision-making.

The LCIA registers around 300 new arbitrations each year, most of which involve experts. Most parties areinternational and drawn to English law, a London seat and the LCIA's reputation for quality disputeresolution, 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:

l Experts can provide invaluable support behind thescenes in preparing a claim to ensure it is clear andwell supported. They also help draft the terms ofexperts who will be appointed to give evidence. Suchexperts should beware conflict issues if they go on toact as arbitrators.

l Experts can be party-appointed to provideevidence in the form of an expert report and thenorally at the hearing. The risk that each party'sexperts work in isolation from each other is normallyreduced by the tribunal asking the experts to worktogether and (often) to produce a joint report. This approach still leaves the problem of how to deal withfundamental incompatibilities in the experts'evidence. Witness conferencing (or hot-tubbing) isone solution – provided the tribunal is comfortable enough with the issues to ask the right questions.

l The tribunal can appoint an expert to provide anon-partisan view and help bridge the incompatible positions of the parties. Such an approach requiresthe tribunal to understand the issues well enough tomake a suitable appointment. If the parties also appoint experts, the tribunal-appointed expert can helpresolve differences between them.

l In technical cases, an expert can be appointed todetermine the issues. This is "expert determination"and not arbitration and the end result will be enforceable in accordance with the applicable nationaland international standards. An expert determination will not work if the underlying issues are mainlylegal. "Split" clauses that provide for different typesof dispute resolution according to the type of disputeshould be carefully drafted to ensure that expert determination is used in the correct circumstances – andto ensure a suitable remedy is available.

l An expert can be appointed as a member of atribunal panel although it is sometimes difficult forparties to agree on what type of expert is needed(unless an institutional appointment is required).

The LCIA recommends that parties recognise theissues and difficulties that can arise with each of theabove options. In particular, it recommends thatlawyers and advisers become more familiar with theissues with which experts have to deal and thatexperts themselves "be flexible enough to facilitatediscussion with the tribunal and the other experts".

Article by; Esther McDermott(Senior Associate) and Tracey Summerell(Managing Practice Development Lawyer)

Many thanks to Dentons for permission to reproduce this article.

Dentons is recognized as a top five global law firm.BTI Brand Elite ranks Dentons fourth in its 2018survey of legal service purchasers. www.dentons.com

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