"Expert" Problems in Arbitration

London Branch: Joint Seminar with the Academy of Experts

“Expert” problems in arbitration

10 October 2019

An examination of the issues in the conduct of experts, from the perspectives of the solicitor, the expert and the arbitrator

 

L-R: Emyr Evans, HKA; Edwin Glasgow QC; Paul Rose, chair, London Branch and convenor; James Pickavance, Jones Day; Ben Johnson, Berkley Research Group.

Paul Rose, Chair of the London Branch, thanked the host, consulting firm Berkley Research Group, and welcomed attendees.

James Pickavance is a solicitor, partner and construction litigation specialist at Jones Day. He has represented parties to multi-billion dollar international construction disputes in litigation and arbitration.  James began by saying that he considers the conduct of experts in arbitration to be a factor which contributes to London’s reputation for arbitration. He identified types of misconduct which may be seen in arbitration.  Lawyer-led misconduct might include coaching the expert, editing the expert report or withholding information from experts.  Expert-led misconduct might include failure to consider the evidence, a lack of objectivity, and not doing the work personally.  He felt that there was greater scrutiny of experts in litigation, given it is public, and regulation is more detailed, comparing the White Book (UK Civil Procedure Rules) with arbitral institutions’ rules.  He considered possible solutions, including arbitrators use of their powers to exclude evidence or give costs penalties; engagement terms requiring experts to adhere to rules of their professional body and reporting them if they do not; mandatory publication of awards and a supranational body.  

Emyr Evans is a quantity surveyor and barrister (non-practising), a Fellow of the Academy of Experts and a partner at consulting firm HKA.  He has been appointed on many occasions as quantum expert. Emyr examined the legal duties of an expert, noting that their overriding duty is to the tribunal, and they are required to be impartial, independent and objective.  He directed experts to the seven classic principles for experts identified in leading case of The Ikarian Reefer [1993] 2 Lloyd’s Rep. 68, which is considered a statement of best practice. Invaluable guidance is also found in The Code of Practice of the Academy of Experts (http://www.academyofexperts.org/guidance). Experts who fall short may be liable for breach of contract or disciplinary proceedings such as those of the Academy of Experts.  Experts can reduce the risk of this through very clear engagement terms, including recording any modifications in writing.  The Academy of Experts has model terms of engagement. 

Edwin Glasgow QC of 39, Essex Chambers, is barrister, arbitrator, and judge of the Qatar Financial Regulatory Tribunal. He specialises in the resolution of substantial and complex financial, commercial and construction disputes and is regularly appointed as arbitrator by the leading arbitral institutions.   He offered insights from the perspective of the arbitrator receiving the expert evidence.  He said that it is a relief for an arbitrator to see that the expert is a member of an organisation that sets standards, such as the Academy of Experts.  He recommended that experts consult the Chartered Institute of Arbitrators’ Expert Protocol https://www.ciarb.org/media/1273/partyappointedexpertsinternationalarbitration.pdf

It is very important that an expert communicates clearly to arbitrators who are not experts in the field.  They should make sure that they have direction – that it is clear where their evidence is going, and remember that reputations that take a lifetime to build can be lost in a few minutes.  He felt that cases are often won or lost on the expert’s evidence. 

There followed an extensive Q&A Session and a drinks reception was kindly provided by hosts   Berkley Research Group.