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The Tribunal’s Independent Expert

Special Reports

by Richard Ward, CEng, FIET, FIMechE, MIDGTE, MAE Principal, Robert Bruce & Sons, Consulting Engineers

It is relatively unusual for a Tribunal to commission its own independent expert in arbitration proceedings, but the writer was appointed in this capacity in an international arbitration conducted under the auspices of the International Chamber of Commerce. The arbitration, which arose between a builder and a design contractor, concerned the design of a large power station. It involved questions relating to the design process, the coordination of design disciplines, the quality of design, changes to contract, compliance, delay, the percentage and value of work completed, and the cost of completion and remedial works. All the main engineering disciplines were involved. The project management, mechanical and electrical aspects lay within my personal expertise, and a colleague provided expert assistance and input on matters of civil and structural engineering.

The Terms of Reference invited the Expert to examine the submissions and documents presented by both Parties and allowed him to ask for additional clarifications, details and other relevant material information from either Party and to interview witnesses, if necessary. Each party provided its submissions, supported by an expert report, a rebuttal report and a rejoinder, together with documentary evidence and witness statements. In total this amounted to more than 100 lever-arch files of evidence (unfortunately, an electronic documentmanagement system was not used in this case). I sought and received certain clarifications from the Parties, but, presented with such full written evidence by both sides, I did not find it necessary to interview witnesses. Key witnesses of fact were examined by the Tribunal in a hearing, which I attended, but the Parties’ technical experts were not cross-examined.

The initial mission was extremely wide ranging. To limit costs and make the task more manageable, I proposed an approach based on detailed examination of a representative sample of issues, but this was not accepted by the Tribunal. After receiving my initial appraisal of the work involved in preparing the required report, the Tribunal and the Parties deliberated to narrow the issues and the Tribunal then issued an intermediate award, which eliminated certain elements of the case from expert consideration and reduced the scope of the Expert’s mission. Each of the remaining issues was analysed and evaluated in detail. Effectively my role was to provide independent expert opinion on all the engineering issues in the case, to assist the three-man Tribunal, which consisted entirely of lawyers.

The independent expert operates in isolation from the sources of the evidence and, in an international context particularly, there is scope for misunderstanding the evidence. With the knowledge, agreement, and indeed with the encouragement of the Tribunal, I therefore decided to issue a draft report for the Parties to review and comment upon before preparing the final version. This had the advantage of bringing contentious opinion into the open before any hearing based on the report. It also gave me the opportunity to address such contentious matters more fully in the final report and to provide additional explanation where necessary.

In reaching my conclusions, I had to make certain assumptions regarding the proper construction of the Contract between the Parties. It was of course the
prerogative of the Arbitral Tribunal to construe the Contract. Since the true construction of the contract could not be decided before I issued my report, where my opinion relied on a particular interpretation I provided alternative conclusions that the Tribunal could adopt or reject according to its construction of the Contract when making its final award.

I was examined on my final report by the Tribunal and effectively cross-examined by both parties’ attorneys. I was, in fact, cross-examined on the same
report by both sides at two separate hearings, the second of which was convened in order to acquaint a replacement Chairman of the Tribunal more fully with the case, his predecessor sadly having died in post. The whole process from my instruction to issue of the Tribunal’s final award took more than ten years. The mission was a major challenge that drew on all the experience gained in many years’ involvement in large international engineering projects. ?

Richard Ward, Principal of Robert Bruce & Sons, provides engineering consultancy and expert services based on more than 40 years’ experience of power generation, the process industries, industrial machinery and electrical installations.

The practice was founded in 1908 and has from its outset been engaged in international projects connected with the extractive and secondary industries of developing as well as developed nations.

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