International arbitration is experiencing significant growth in recent years due to many mega engineering and construction projects being developed around the world. Such projects bring together participants from different corners of the world, including host country owners, large international engineering and construction contractors, and international banks. When disputes arise, the parties often select international arbitration forums such as the International Chamber of Commerce’s International Court of Arbitration (ICC), the London Court of International Arbitration (LCIA), and the Singapore International Commercial Court, to name a few. These international arbitration forums offer many advantages, such as neutrality and flexibility of the arbitration process.
However, international arbitration forums have several unique features that engineering and construction experts need to understand before engaging in this type of work. Provided below are some lessons learned from a recent ICC arbitration that may help explain some of the unique challenges and requirements of experts working with international arbitrations.
1. No Direct Examination
Oftentimes, there are no direct examinations of the experts. Counsel submits the written expert reports to the Tribunal for their direct testimony. The experts may be allowed a brief presentation of their findings to the Tribunal followed by cross-examination by opposing counsel.
This places greater emphasis for the expert reports to be as clear and concise as possible, as this is the limit of direct expert testimony to be considered by the Tribunal. Experience has shown that effective expert reports include extensive footnotes with pinpoint, also called pincite, references to the source documents. In cases with hundreds, if not thousands of exhibits, it is imperative that the expert clearly cite the referenced documents to ensure the Tribunal can find and fully understand the basis of the opinions and statements. Expert reports that are properly footnoted are typically more credible and substantiated, and therefore more persuasive. It is the expert’s job to guide the Tribunal through the relevant documents necessary to substantiate its opinions and conclusions.
2. Written and Sworn Witness Statements
International arbitrations rely more heavily on sworn witness statements from fact witnesses to explain relevant project events and issues to the Tribunal. Experts can and do rely upon these witness statements as well. It is therefore important that the witness statements also be properly footnoted to ensure the Tribunal has a full and detailed description of the facts and the sources of information relied upon.
3. More Limited Document Production
In an effort to limit “fishing expeditions,” the Tribunal may reject overly broad document production requests. It is therefore important for the expert to work with counsel to carefully craft document production requests to maximize the likelihood of receiving the desired documents. Proper document production requests will include:
- Only documents in the opposing party’s possession. Care must be given to explain why such documents should be in the opposing party’s possession. Implicit in this reasoning is that documents that are in your client’s possession should already have been made available to you for your analysis.
- Requests for documents that are related to specific disputed issues and described in sufficient detail. Broad requests such as “all emails” will typically be rejected.
- Explanation as to why the requested documents are relevant to the case and material to its outcome. Linking such document production requests to case-specific issues will increase the likelihood of the Tribunal agreeing with the request.
4. Limited or No Depositions
International arbitrations typically do not utilize depositions unless there is a showing of exceptional circumstances. With respect to experts, this means opposing experts may not be deposed prior to the hearing, which limits the ability to question them on the basis of their opinions. This therefore places a greater emphasis on carefully crafted document production requests. Doing so can maximize the likelihood that documents necessary to evaluate and respond to opposing expert reports are received.
International arbitrations have many similarities to domestic arbitration forums. However, there are some distinctions that must be understood in order to be successful. Hopefully the above-listed items provide some useful reminders of the key differences between domestic and international arbitration.
Chris Sullivan is a vice president and principal consultant with Interface Consulting International, Inc., based in Houston, Texas. Mr. Sullivan specializes in analyzing and preparing engineering- and construction-related claims and providing litigation and arbitration support, including expert testimony, and has testified in various courts and arbitration forums. For more information, call 800.626.0054, email firstname.lastname@example.org, or visit www.interface-consulting.com.