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Expert Evidence

11 April 2019

Expert evidence is a widespread feature of international commercial and investor-state arbitration. There are few cases of any size where an expert witness is not called upon to give evidence on any of a wide range of technical, financial and legal issues. Where one party appoints an expert, for example, to calculate damages, the opposing party is practically forced to follow suit and appoint an expert in the same discipline.

In simple terms, expert witnesses fall into four categories, which may overlap:[1]

  • scientific experts;
  • industry experts;
  • financial experts; and
  • legal experts.

In all cases, the role of the expert is very similar: to provide the arbitral tribunal with assistance in understanding evidence on complex issues that will not be immediately clear even to experienced arbitrators.[2] This will enable the arbitrators to form their own view of the merits of the case.

Many disputes turn on scientifically complex questions. For example, a dispute in the pharmaceutical sector may require an arbitral tribunal to decide whether a medical product is sufficiently advanced to proceed to clinical trials on real people. In an engineering dispute, the key issue may be whether a building meets contractual specifications, such as whether a bridge can bear a particular load.

Industry experts, who often also draw on technical or scientific knowledge, will review contested issues specific to a particular industry that only someone with deep inside knowledge and experience can judge. In construction disputes, it is usual for an expert witness to analyse delaying and disrupting events in the course of a project with a view to helping an arbitral tribunal determine the contractor’s entitlement to extensions of time or the employer’s to liquidated damages. In a gas price review arbitration, at least one of the parties, buyer or seller, will seek an adjustment of the price of gas supplied under a long-term sales contract. An expert, usually an economist, will review developments in the relevant markets to calculate an appropriate amended price.

Damages experts are the most commonly encountered in arbitrations. Most claimants seek damages to compensate them for harm done, while respondents need to defend the claim and often bring counterclaims themselves. Moreover, lawyers are unfortunately not always as economically sophisticated as they might be. Nor are clients always the best judges of their own claims, as they are sometimes emotionally heavily involved in the dispute. Finally, the calculation of damages has developed into a sophisticated discipline in its own right. A complex damages calculation may draw on micro- and macroeconomic considerations, accounting principles and business practices. It is seldom a matter of enclosing unpaid invoices with the statement of claim.

Damages are usually compensatory. They may relate to the cost of remedying physical damage, for example, repairing a faulty piece of machinery or replacing defective goods supplied under a sale of goods contract. On other occasions, a claimant will want to calculate losses or expenses that it has already incurred as a result of a respondent’s alleged breaches, or to estimate the lost profits that a claimant considers that it would have earned in the future but for the respondent’s alleged breaches. Future damages calculations are particularly common where a long-term contract was terminated prematurely. For example, an international oil company may enter into an agreement with a national oil corporation for the exploitation of oil under a 25-year concession. A dispute may arise, for example, after 10 years, before the end of that period. The foreign party may terminate the agreement with the national party seeking to be compensated for damages that it would have earned for the remainder of the period.

Legal experts represent a special case, because parties usually choose arbitrators and counsel for their legal expertise. Lawyers should be able to understand and apply the law for themselves. The need for legal experts, usually a senior practitioner or eminent academic lawyer, arises in different contexts. Sometimes the law applicable to the main contract is the law of a jurisdiction that neither counsel, who may be drawn from international firms, nor the arbitrators are familiar with. It is not easy for counsel to argue points of foreign law with confidence without the support of an expert. The expert can also reassure the arbitrators that they have understood the relevant foreign law principles.

Although commercial arbitration is contractual, legal questions may arise unrelated to contract law. These include whether a party has complied with a regulatory requirement, for example, environmental standards or competition law. Sometimes, the law of a jurisdiction other than that of the main contract will prove relevant and that law will be less familiar to the arbitrators. For example, the parties to a joint venture contract may choose the governing law of jurisdiction A, which is well known to counsel and the arbitral tribunal, but then create a joint venture company in an unrelated jurisdiction B. The business of that company will then be subject to local laws. The law of jurisdiction B may impinge on a dispute under the joint venture contract, for example, regarding the compliance of the joint venture company with local tax laws. Here, again, an expert may be helpful.

What is expert evidence?

State courts often have large discretion with regard to the probative value they ascribe to different types of evidence, including that of fact witnesses and experts.[3] Fact witnesses and expert witnesses are in a similar position, for example, when it comes to the consequences of false testimony.[4] However, certain basic features differ. Experts are required to be independent and to have the necessary expertise in the relevant field.[5] That independence applies to experts in international arbitration as well.[6] Unlike fact witnesses, whose role is to testify to facts – who said what, when and to whom – experts provide their expert opinion to the best of their knowledge and belief.[7] Depending on the juridiction, experts can draw conclusions on a factual level, but must refrain from legal qualifications.[8] Hence, an expert can conclude that a party’s action is not state of the art in light of industry standards, but must refrain from qualifying it as grossly negligent.

In international arbitration, the distinction remains but can become blurred. There can be a thin line between fact witnesses and experts. Indeed, in complex cases, fact witnesses may have a similar level of expertise to an appointed expert. A factual account of a complex process may stray into expressing opinions.

Although experts must remain independent of the party that appointed them, they are, of course, paid by that party and will to some extent support ‘their’ party’s point of view. This sometimes leads to the allegation that expert witnesses are just ‘hired guns’ paid to say what their paymasters want to hear. This is a particular concern in disciplines where there are many more or less full-time professional expert witnesses, notably the calculation of damages.

While the concern is not unfounded, it should be seen in perspective. Experienced arbitrators approach expert witnesses in the expectation that they may act as if they were extra advocates, and scrutinise their statements accordingly. No one is deceived by misplaced perceptions of independence. Experts themselves have no interest in making wildly partisan statements. Like advocates who make weak arguments to please their clients, or partisan arbitrators keen to obtain an award in favour of their appointing party, expert witnesses who exaggerate and distort facts and commercial or scientific standards lose the respect of the arbitral tribunal. Honesty and realism are in an expert’s own best interest. When arbitrators lose trust in an expert witness, they will not believe anything he or she says. Finally, it is an old joke that no party has submitted an expert report that said the party did not have a claim for damages. In truth, no party would have an interest in filing such a report. However, it does not follow that experts simply write what parties tell them. Often, the expert report reflects the result of a long cooperative process with parties and lawyers, in which the expert has led the client to a more sober and realistic assessment.

Two schools of thought have emerged to tackle perceived bias of experts and to help arbitrators to derive the maximum benefit from their expertise: one is for the parties to appoint their own experts, who then give rival testimony, and the other is for the arbitral tribunal to appoint a single expert who will then report his findings to the arbitral tribunal and parties.[9] At least in larger cases, practice has favoured party-appointed experts. Although the recent publication of the Prague Rules has revived the debate, with the rules providing specifically for tribunal-appointed experts (article 6 Prague Rules), party-appointed experts are often the better choice. Competing experts can have a corrective effect on each other. Neither will want to look a fool in front of a colleague. Moreover, their different approaches can be complementary with each offering a different perspective on the same problem. Wolfgang Peter likens this to the Matterhorn, Switzerland’s most famous mountain, which differs dramatically depending on whether it is seen from Zermatt or from Cervinia in Italy.[10] Taken together, the two views describe the mountain comprehensively.[11] There is also a difficulty in challenging the evidence of a single expert. The arbitrators may not be scientifically or economically qualified to do so and the parties will need to appoint their own experts to help them to do so. The result is to have three experts in place of two. Finally, there is a danger that the tribunal-appointed expert will become the de facto decision-maker or adjudicator.[12] The arbitrators and parties may see him or her as a decision-maker because they provide an opinion from position of authority that is not easily challenged.

This article focuses on working with party-appointed experts. It remains the most common approach and is in many cases the better one.

Working with experts: challenges to counsel

One of the most important, if least glamorous, roles of arbitration counsel is to act as a sort of régisseur, or director, who puts on a show for the arbitrators. This comprises written and oral submissions and a line-up of witnesses. Surprisingly perhaps, given the subject of this article, the first question should be whether a party really needs an expert. In smaller cases, this may be a matter of cost. Counsel should ask themselves critically whether a legal expert is really useful to support an uncontroversial point under the law of counsel’s own jurisdiction. In particular, questions of contract law often come down to a close, practical reading of the contract rather than elaborate canons of interpretation.

Industry experts should also be approached with caution. Not every transaction or business decision results from ‘industry practices’ nor are the practices always clear and uncontroversial. For instance, maritime practices and usages do not necessarily apply to a simple contract for commission payable upon the sale of a yacht. An expert will not win over an arbitral tribunal by trying to prop up one party’s version of events with appeals to nebulous industry practices. Nor should the sophistication of experienced arbitrators be underestimated. They will be familiar with different business sectors and practices. They do not want an expert to tell them that a straightforward commercial decision is a dark art.

Choosing an expert

The most important quality in an expert is obviously relevant expertise. Professional associations, personal recommendations and guides can help in identifying candidates. The challenge of matching expert knowledge to a particular case is less than straightforward. An auditor is not a valuation expert and may not be best placed to give evidence in a post-closing M&A dispute. An expert on delay in construction disputes may not have the technical knowledge to assist in an engineering dispute.

Beyond that, parties should look for integrity and independence of mind. An expert who conjures up a huge damages claim to impress the client is worthless if the arbitrators are unpersuaded. An expert should bring an open but independent mind to a dispute, bearing in mind that the client may have strong feelings about the value of a claim or nature of a breach. Finally, parties and counsel should consider presentation and linguistic skills, not least in light of the opposing party’s choice of expert. Experts need a certain temperament or frame of mind. They should be resilient under pressure and quietly confident in their testimony, ever-willing to help the arbitral tribunal. Arbitrators are very sensitive to any suggestion that an expert witness (or anyone else) is talking down to them.

Apart from full-time professional expert witnesses, there are also the occasional experts who combine expert witness work with consulting and the one-off expert who is appointed once in his career. The type of available experts will depend on demand for expertise in a particular subject area. The near-necessity of damages experts has created a specialist profession. At the other extreme, the need for experts on highly technical matters, such as automotive electronics, is small and parties might choose an engineer from the industry who has never testified before and may never do so again. All types of expert can be good. Much depends on the individual and the appropriate preparation.

Working with experts

The successful running of a case depends on many small, practical decisions. For the arbitral tribunal, it may be necessary to schedule sufficient reading time. For the counsel, coordinating the schedules of witnesses and experts with those of the legal team ahead of a filing is essential. For the parties, it is highly desirable to have a straightforward internal procedure for giving instructions to external lawyers and providing them with a point of contact.[13] Careful and realistic planning is the starting point. Most things take longer and are more difficult to accomplish than they at first seem. Optimistic time estimates based on similarly optimistic client meetings early in the case should be viewed with cautious realism.

The first task is to define the scope of an expert report, agree a budget, whether fixed or indicative, and a schedule. The scope may be amended as the preparation evolves. The next step is to provide the expert with all relevant materials. At a hearing, any expert witness will lose face, if opposing counsel refers to a relevant document on the record that he or she has not seen. Counsel should also clarify what help an expert witness needs. Some actual drafting assistance, an opportunity to put questions to a fact witness or an explanation of the procedure may be called for.

The marks of a good expert report

The subject matter may vary but the following advice applies to most expert reports.

  • Introduce the expert stating academic and professional credentials and relevant experience, a full CV should be attached. Also acknowledge the assistance from members of the expert’s team, if appropriate.
  • Include a statement of independence from the parties.[14] If necessary, identify any potential conflicts of interest – it is better to do so at the outset than for them to come out at the hearing.
  • Identify the scope of the report and instructions as well as any legal or factual assumptions, and include a meaningful executive summary. This is an essential point of reference to counsel and the arbitrators – it should be drafted with care and not as an afterthought.
  • Start the report with issues directly related to the dispute. Consider putting background information about the development of an industry sector or market in an annex, as there is a risk that the reader will have lost momentum before reaching the main analysis.
  • Ensure that the report contains proper citations and references. However, it is not a scientific paper and a different style of presentation may be appropriate.
  • Consider the level of knowledge that you can assume among the arbitrators. As a test, if counsel need coaching, usually so will the arbitrators.
  • If the report contains a lot of technical terminology, consider including a glossary.
  • Many arbitrators like colourful graphs and diagrams.[15]
  • The tone and style should be serious, precise and factual – leave rhetorical flourishes to advocates.
  • Avoid broad-brush endorsements (‘Over a period of 10 years, the claimant managed the joint venture very prudently’) and sweeping statements (‘No one would ever act the way the respondent did’). They are easily made but may prove hard to defend or explain.
  • Be realistic. Say what you can reasonably defend, not what you think the client wants to hear. It may be helpful for an expert witness to ask whether he would give the same advice or express the same opinion in another professional context, such as when acting as a consultant.
  • Stick to the mandate. Experts should not make findings of fact or law. Too many experts purport to interpret the main contract in an arbitration.
  • In complex arbitrations, many factual and legal issues are in dispute. It may be necessary to consider different scenarios depending on how the arbitral tribunal might find on a certain legal or evidentiary matter.
  • Break down damages calculations in a way that allows the arbitral tribunal to award some damages, if it does not find entirely for the party claiming them. Do not put an arbitral tribunal in a position of having to award a €1 billion or nothing. If in doubt, it will award nothing.

Counsel and expert witnesses should help each other by reviewing one another’s work. Counsel should also introduce and summarise the expert report in their memorial or statement of case. This is better practice than just quoting conclusions and final figures. If counsel cannot summarise an expert report coherently in a written submission, they have probably not understood it. If they do not take the time to read and master an expert report, why should the arbitrators?

Meetings between experts before the hearing

It is sometimes suggested that expert witnesses should meet after they have filed their reports and before the evidentiary hearing.[16] The idea is for them to compare their reports, identifying areas of agreement and disagreement, so that the parties and arbitrators can focus on areas of disagreement at the hearing and use the time available more effectively.[17] Agreements and disagreements will be compiled in a joint list or protocol. Meetings may also allow experts to seek factual clarifications from each other on points of technical detail.

Theoretically at least, this is a good idea, which parties should consider seriously. However, in practice, they should bear a few difficulties in mind.

  • It must be practicable for experts to meet. This may not always be possible in cases with expedited timetables or where they are based on other sides of the world.
  • Experts must have roughly comparable approaches and cover similar ground for meetings to be viable.
  • Experts from both sides must go into the meeting well prepared. If the experts do not understand each other’s work, there is little point in identifying similarities and differences.
  • Experts should not use the meeting to settle the parties’ disputes. There is a danger that where a claimant considers 100 to be a reasonable price in a dispute, while the respondent argues for 50, the experts will settle for 75. That may be a reasonable price, but it is for the arbitrators to adjudicate or the parties to agree themselves in any settlement.
  • Parties and counsel should only agree to expert meetings, if they are comfortable with the experts drawing up lists of agreements and disagreements. Sometimes counsel rewrite draft lists heavily or parties make sweeping deletions.
  • The experts must themselves act cooperatively and constructively. Regrettably, some experts abuse meetings to extract concessions from their counterpart or to press for points of agreement to be included in the memorandum that were never agreed.

Experts at the hearing

Even more than with fact witnesses, arbitrators and counsel alike benefit from hearing the oral evidence of experts. Not only will they have questions to put to expert witnesses, but expert evidence will also often only become fully clear, when it is explained and discussed. Unless the expert evidence relates only to a narrow, marginal point, expert witnesses should be called to testify.

There are different approaches to taking expert evidence at hearings. It is generally desirable for experts to give short presentations summarising their reports and key findings. The length will depend on the complexity of a case and may range between 20 minutes and one hour. PowerPoint presentations are usually useful, especially if it is necessary to present graphs, maps or photographs. Often, they will become an important tool for arbitrators and should have large margins and text should appear on a white background to allow for notes and highlighting.

Traditionally, counsel have cross-examined expert witnesses. Arbitrators and counsel should also consider some form of witness conferencing or hot-tubbing where the parties’ experts testify side-by-side.[-1]9 Usually, they will go through a list of agreed topics, perhaps following the order of topics in their reports.[-1]0 Each will give his opinion and the other will be able to respond. This forces expert witnesses to set out their views and objections to each other concisely. The arbitrators will have the benefit of being able to contrast the arguments for and against any issue and follow up with any questions. There is no rigid formula and the parties will usually have some opportunity to put their questions to the expert, whether in formal cross-examination or discussion.

Challenging expert evidence

The practice of challenging experts’ evidence in cross-examination remains common, irrespective of whether counsel and arbitrators are closer to common or civil law culture.[-1]1 Counsel may feel that if they cannot challenge an expert’s evidence head-on, the expert may get away with a mistake or inaccuracy. However, humility is advised. Even experienced counsel, who have, for example, extensive knowledge of valuation disputes, will usually lose an argument against a valuation expert on accounting and financial principles. Unlike with a fact witness, counsel cannot fall back on common sense and personal experience. Often, an expert can take advantage of the superficiality of counsel’s knowledge and refer authoritatively to something that is not mentioned in any report: ‘The international industry standards that you refer to, do not allow for this approach, but domestic ones do.’ ‘My calculation makes sense if you consider the omega coefficient that I did not need to mention.’ ‘Your reference to industry practices would have been relevant 10 years ago but is now out of date.’ Frequently, counsel will have no answer.

The following techniques can help to prepare a good cross-examination.

  • Work closely with your party’s expert to understand the opposing party’s expert report in detail, invite your expert to identify a list of weaknesses in the report that you can turn into cross-examination questions. Appointing an expert witness is a bit of an arms race: yours needs to be better than the opposing side’s. You can only cross-examine on something that you understand yourself.
  • A lawyer may not fully understand the subject matter of a report but should have a sense for a coherent argument. Go through the expert report looking for leaps in the argument, unsubstantiated conclusions and woolly thinking. Impersonal constructions (‘it is understood that . . .’), indications of uncertainty (‘it may be the case that . . .’), and more subjective statements (‘I think a discount rate of 15 per cent is reasonable . . .’) can reveal doubt, subjectivity and weakness in an analysis and so points of attack. Equally, look for signs of exaggeration, such as, ‘no qualified engineer would even think that . . .’.
  • Check the evidentiary basis of an expert report. Did the expert undertake a necessary site inspection, run tests or review underlying documentation? Does the expert cite scientific literature? Be wary of experts who rely on personal experience (‘I have never seen anything like this’) or rely too heavily on the client’s instructions (‘I am instructed that the claimant obtained the best available terms for the lease’).
  • Any expert will make assumptions based on instructions, facts of the case and experience. In itself, this is reasonable, but it is worth exposing them as mere assumptions in cross-examination, and testing whether the expert’s conclusions would change if the assumptions changed. Experts sometimes adapt their assumptions, for example, about market developments to obtain the conclusions that they want. A company, for example, may be expected to do better if a global boom rather than a global recession is assumed.
  • Focus on issues that are genuinely relevant to the dispute. A missing comma in a footnote is usually inconsequential.
  • Just because you understand a subtle point, do not assume the arbitrators do. If you take the experts through technical arguments, ensure that they can follow you.
  • Only attack an expert on grounds of credibility or bias, if the evidence is strong. Experienced arbitrators know full well, for example, that expert witnesses may have worked with the same law firm more than once. They will be more influenced by the quality of the report than the expert’s background.
  • Expert witnesses are only human. As with fact witnesses, psychology matters and arbitrators need to trust the expert’s conclusions. It may work to your advantage to show that an expert is vain, arrogant or rude about his or her colleagues.

The arbitrator’s role

An arbitrator will need to understand and evaluate an expert’s evidence. Decisions on liability often depend on it and decisions on quantum almost invariably do. When choosing an arbitrator in a complex dispute, it may be more important to choose someone willing to grapple with the experts analysis, than familiar with the applicable law. Many of the considerations applicable to preparing and challenging expert evidence can be adapted to evaluating it. Importantly, the arbitrator’s approach will be less confrontational than opposing counsel’s. After the arbitral tribunal’s deliberation, the arbitrators will have identified the key issues and may be able to focus on parts of the expert evidence essential to their reasoning.

  • Arbitrators, like counsel, sometimes underestimate the challenge of mastering expert evidence. Sufficient time needs to be allocated to it at all stages.
  • Do not assume that counsel fully understand expert evidence. It is necessary for arbitrators to undertake their own preparation and put their questions to the experts.
  • Arbitrators should make full use of the hearing to understand and explore expert evidence. Unlike counsel, they do not have the experts at the end of a telephone line.
  • A good award shows that the arbitrators have considered the evidence of experts in proper detail and incorporated it in a reasoned decision. There are regrettably some awards where a summary of the rival experts’ evidence is followed by a brief statement that the arbitral tribunal prefers the evidence of one or other of them. Arbitrators owe it to the parties to give reasons.

Conclusions

Expert evidence is an indispensable feature of commercial and investor-state arbitration. This is not surprising. Arbitration seeks to resolve commercial disputes of some form and these tend to be fact-heavy. It is hoped that this article has shown that parties, counsel and arbitrators cannot outsource difficult questions to expert witnesses. Their opinions cannot be formed and those opinions cannot stand in a vacuum. Rather, expert witnesses need to be fully involved in the preparation of the case and the hearing. They must themselves be team players and the surrounding team must support them to ensure the best results for all concerned.

The author wishes to thank Axel Schmidlin and Maria Spiess, junior associates at Peter & Partners, for their valuable assistance in the preparation of this article.


Notes

[1] Cf. also Nigel Blackaby et al, Chapter 6, ‘Conduct of the Proceedings’, in Blackaby et al (eds), Redfern and Hunter on International Arbitration, Oxford University Press, 6th edition, 2015, pp 397–398; Harris Bor, Chapter 24: ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 503.

[2] Cf. for example, Nigel Blackaby et al, Chapter 6, ‘Conduct of the Proceedings’, in Blackaby et al (eds), Redfern and Hunter on International Arbitration, Oxford University Press, 6th edition, 2015, p 394; John Temple-Cole, ‘Experts Should be Under Control When Providing Evidence in Arbitration’, in Romesh Weeramantry and John Chung (eds), Asian Dispute Review, 2018, Vol 20, Issue 2, p 66.

[3] Cf. Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 515; Bernhard Berger/ Franz Kellerhals, International and domestic arbitration in Switzerland, 3rd edition, 2015, p 476. A similar rule applies in international arbitration: Cf. Nigel Blackaby et al, Chapter 6, ‘Conduct of the Proceedings’, in Blackaby et al (eds), Redfern and Hunter on International Arbitration, Oxford University Press, 6th edition, 2015, p 392.

[4] Cf. for example, articles 171(1) and 184 (1) of the Swiss Code of Civil Procedure. Cf. also Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 512, 513.

[5] Cf. for example article 183(2) of the Swiss Code of Civil Procedure that provides that ‘The same grounds apply for the recusal of experts as apply to judges and judicial officers’; Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 510, 513.

[6] Cf. articles 5 and 6 of the IBA Rules on the Taking of Evidence in International Arbitration (2010); Tobias Zuberbühler et al (eds), Commentary on the IBA Rules on the Taking of Evidence in International Arbitration, article 5, 2012, p 111; Bernhard Berger/ Franz Kellerhals, International and domestic arbitration in Switzerland, 3rd edition, 2015, p 471; Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 510, 513.

[7] Cf. Nigel Blackaby et al, Chapter 6, ‘Conduct of the Proceedings’, in Blackaby et al (eds), Redfern and Hunter on International Arbitration, Oxford University Press, 6th edition, 2015, p 389; John Cock, ‘Factual and Expert Evidence in Arbitration’, Asian Dispute Review, 2014, p 33.

[8] Cf. for example Thomas Weibel, article 183 ZPO, in Sutter-Somm et al, Kommentar zur Schweizerischen Zivilprozessordnung (ZPO), Schulthess Juristische Medien AG, 2016, p 1370, N 5.

[9] Cf. Gary Born, International Commercial Arbitration, 2nd edition, 2014, p 2279; Nigel Blackaby et al, Chapter 6, ‘Conduct of the Proceedings’, in Blackaby et al (eds), Redfern and Hunter on International Arbitration, Oxford University Press, 6th edition, 2015, p 395. Some authors also support party-appointed experts with the possibility for the arbitral tribunal to intervene and control expert evidence, cf. Jonathan Lee QC, ‘Controlling Expert Evidence in International Arbitration’, Asian Dispute Review, 2017, p 5; John Temple-Cole, ‘Experts Should be Under Control When Providing Evidence in Arbitration’, Romesh Weeramantry and John Chung (eds), Asian Dispute Review, 2018, Vol 20, Issue 2.

[10] ‘Wolfgang Peter, Party-Appointed Witnesses v. Tribunal-Appointed Experts: Is there a Best Practice in International Arbitration?’, in Cascante et al, Festschrift für Gerhard Wegen zum 65. Geburtstag, 2015, p 721.

[11] ‘Wolfgang Peter, Party-Appointed Witnesses v. Tribunal-Appointed Experts: Is there a Best Practice in International Arbitration?’, in Cascante et al, Festschrift für Gerhard Wegen zum 65. Geburtstag, 2015, p 721.

[12] Cf. also Gary Born, International Commercial Arbitration, 2nd edition, 2014, p 2278; Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 520.

[13] Daniel Greineder, ‘The Limitations of Soft Law Instruments and Good Practice Protocols in International Commercial Arbitration’, in ASA Bulletin 4/2018, p 910.

[14] Cf. also Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 514.

[15] Cf. also Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 514.

[16] Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 507.

[17] Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 507.

[18] Cf. Wolfgang Peter, ‘Witness Conferencing Revisited’, in Arbitral Procedure at the Dawn of the New Millennium: Reports of the International Colloquium of CEPANI October 15, 2004, 2005, p 158; Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 508; Jonathan Lee QC, ‘Controlling Expert Evidence in International Arbitration’, Asian Dispute Review, 2017, p 8; cf. also Patricia D Galloway, ‘Streamlining the Arbitration Process through Innovative Methods of Handling Fact Witness’, Construction Law International, 11 No. 2, 2016; Hazel Genn, Manchester Concurrent Evidence Pilot Interim Report, 2012.

[19] Cf. also Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al., Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 509.

[20] Cf. Harris Bor, Chapter 24, ‘Expert Evidence’, in Lew et al, Arbitration in England, with chapters on Scotland and Ireland, Kluwer Law International, 2013, p 508.

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