{"id":904766,"date":"2025-09-04T14:51:43","date_gmt":"2025-09-04T20:51:43","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=904766"},"modified":"2025-09-04T14:51:46","modified_gmt":"2025-09-04T20:51:46","slug":"expert-witness-testimony-in-construction-disputes","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/expert-witness-testimony-in-construction-disputes\/","title":{"rendered":"Expert Evidence in Construction Disputes: Arbitrator Perspective"},"content":{"rendered":"\n

Katherine Bell | Global Arbitration Review<\/a><\/p>\n\n\n\n

Introduction<\/h4>\n\n\n\n

The primary methods of presenting factual evidence in international arbitration are contemporaneous documents, testimony of fact witnesses and testimony of expert witnesses<\/a>. Whereas contemporaneous documents tend to have the highest probative value when it comes to facts in general, expert witness testimony<\/a> is the predominant means of evidence when it comes to technical matters. International construction disputes frequently raise a variety of complex technical issues and other factual issues requiring technical expertise. The parties, therefore, will almost invariably have to adduce expert evidence in support of their case and to support the tribunal\u2019s decision-making process.<\/p>\n\n\n\n

In practice, parties to large-scale international construction arbitrations often appoint not one but several experts to give testimony in a variety of technical fields. Expert evidence is typically required on the topics of delay, quantum, geotechnics, defects or forensic accounting.<\/p>\n\n\n\n

Against this background, it is not surprising that experts have become a routine feature in international construction arbitration, with the role of the expert witness continuously evolving and being refined by arbitration practitioners.<\/p>\n\n\n\n

Most arbitration rules, such as those of the International Chamber of Commerce or the United Nations Commission on International Trade Law, contain provisions dealing with expert evidence;[1]<\/sup><\/a> however, these institutional rules offer hardly any guidance as to how experts should be managed effectively.<\/p>\n\n\n\n

The arbitration rules of the International Bar Association (IBA) generally reflect arbitral practice and expressly provide for the use of experts.[2]<\/sup><\/a> The most elaborate rules on the use of experts in arbitral proceedings are set forth in the Chartered Institute of Arbitrators Protocol, which aim at supplementing the IBA Rules.[3]<\/sup><\/a><\/p>\n\n\n\n

Construction experts and engineers are frequently members of professional associations. Many of these organisations have established codes of conduct that set out ethical rules for their members when serving as witnesses in dispute resolution proceedings.[4]<\/sup><\/a><\/p>\n\n\n\n

Expert evidence is generally a significant cost driver in international arbitration. This makes it all the more important that expert evidence is managed properly to ensure that it is of utmost benefit to a party\u2019s proof of its case and the arbitral tribunal\u2019s understanding of the technical issues in dispute. Determining the most efficient and successful methods for submitting and handling expert evidence is therefore essential.<\/p>\n\n\n\n

This chapter is based on the author\u2019s experience and considers legal and practical aspects of managing expert evidence throughout the arbitration, focusing on expert evidence submitted by the parties.<\/p>\n\n\n\n

Party-appointed versus tribunal-appointed experts<\/h4>\n\n\n\n

Common law and civil law traditionally take different approaches when it comes to expert evidence. In the common law tradition of the adversarial system, expert evidence is introduced into the proceedings by the parties. In the civil law tradition, experts are appointed by the court and are considered independent \u2018assistants\u2019 to the judiciary.<\/p>\n\n\n\n

Modern international arbitration has combined these two approaches: parties may appoint and present their own experts in support of their case, and the arbitral tribunal also has the power to appoint an independent expert, whether at the request of a party or on its own initiative.<\/p>\n\n\n\n

Article 5.1 of the IBA Rules expressly provides that parties may rely on party-appointed experts as a means of evidence on specific issues. The statements, opinions and conclusions put forward by a party-appointed expert are simply a means of evidence. The arbitral tribunal must still assess the admissibility of expert evidence and its probative value according to the same rules applicable to other forms of evidence.<\/p>\n\n\n\n

With regard to technical issues in particular, it may be assumed that there is a scientific right or wrong; however, in practice, each side will almost inevitably appoint competing experts, who will present conflicting expert evidence. Even after the experts have been tested during cross-examination at the hearing, it is usually a challenging task for the arbitral tribunal to make a reasoned judgment between two diverging professional opinions.<\/p>\n\n\n\n

Where the arbitral tribunal is confronted with conflicting expert evidence, or from the outset in the absence of reports by party-appointed experts, the tribunal may wish to appoint an additional expert of its choosing to obtain technical assistance based on a source of expertise untainted by party bias.<\/p>\n\n\n\n

It is generally accepted that arbitral tribunals have the power to appoint experts, and most arbitration rules expressly grant the tribunal such authority.[5]<\/sup><\/a> Article 6.1 of the IBA Rules provides that the arbitral tribunal, after consulting with the parties, may appoint one or more independent experts to report on specific issues designated by the arbitral tribunal.[6]<\/sup><\/a> The costs of the tribunal-appointed expert are not part of the general costs of the arbitration, and the requesting party is likely to have to pay an advance on such costs prior to commencement of the expert\u2019s work.[7]<\/sup><\/a> If the tribunal decides without a party request that it wishes to appoint an expert, the tribunal will usually request the parties to advance the expected costs in equal shares.<\/p>\n\n\n\n

It is understood and crucial that the arbitral tribunal does not delegate the decision-making to its expert. Nevertheless, parties and counsel regularly have concerns when it comes to tribunal-appointed experts and sometimes fear that their dispute is essentially decided by the tribunal-appointed expert rather than the arbitral tribunal itself. Parties are also often afraid of a lack of control with regard to how the tribunal-appointed expert\u2019s evidence \u2013 potentially the element most critical to their case \u2013 will be presented.<\/p>\n\n\n\n

Further, although the tribunal-appointed expert is subject to the same standards of impartiality and independence as the members of the tribunal, the expert is not the individual chosen by the parties to resolve their dispute.<\/p>\n\n\n\n

Finally, another \u2013 and in the view of the author, justified \u2013 concern that is particularly relevant where cutting-edge technical issues are concerned is that a single tribunal-appointed expert may have a tendency to promote their own published theory without taking into account or presenting to the arbitral tribunal other valid opinions in the field, including those presented by the party-appointed experts. Tribunal-appointed experts, therefore, do not per se have more weight than party-appointed experts.[8]<\/sup><\/a><\/p>\n\n\n\n

Despite the appointment of an expert by the tribunal, parties will often retain their own expert or experts to assist with the preparation of the questions to the tribunal-appointed expert, the assessment of the tribunal-appointed expert\u2019s report, and to prepare for the questioning of the tribunal-appointed expert at the evidentiary hearing; therefore, the appointment of an expert by the tribunal does not necessarily result in considerably fewer expenses for the parties.<\/p>\n\n\n\n

From the point of view of the arbitral tribunal, the selection, instruction and administration of a tribunal-appointed expert is very time-consuming; therefore, arbitral tribunals will generally refrain from assuming this additional task unless the mandating of a tribunal-appointed expert seems essential to the resolution of the case. Further, as a rule, arbitral tribunals have sufficient experience when it comes to assessing technical issues and are capable of extracting the answers to the relevant technical questions from the expert reports, possibly also by relying on expert conferencing at the hearing.<\/p>\n\n\n\n

In light of all the above, it is not surprising that, in practice, expert evidence in construction disputes is habitually submitted by the parties, and tribunal-appointed experts remain the exception. Generally, the arbitral tribunal will appoint an expert only if requested by one or both parties, or if the tribunal lacks the necessary expertise to decide around a certain technical issue relevant to its decision. A tribunal in an arbitration by the Stockholm Chamber of Commerce (SCC) refrained from appointing an expert on its own initiative following the claimant\u2019s objection and the respondent\u2019s lack of comment, on the grounds of its duty of impartiality under the SCC Arbitration Rules.[9]<\/sup><\/a><\/p>\n\n\n\n

Suffice to note that in the rare cases where a tribunal-appointed expert is appointed, the parties\u2019 procedural rights are safeguarded by means of their involvement in the selection process and in compiling the questions to be put to the expert.[10]<\/sup><\/a><\/p>\n\n\n\n

Finding and selecting the right party-appointed expert<\/h4>\n\n\n\n

Considering the significance of expert evidence, finding and choosing the right expert is one of the most important decisions to be made by the parties in the course of a construction arbitration.<\/p>\n\n\n\n

In technical fields where there are few people sufficiently qualified to give an expert opinion, it may be wise to identify and appoint an expert as soon as possible. Moreover, an early involvement of the expert allows counsel to identify and understand the key technical issues in dispute, assess the client\u2019s chances of success and plead the client\u2019s case from the start in the knowledge that the expert\u2019s evidence will be fully supportive.<\/p>\n\n\n\n

Counsel may pursue various avenues when searching for an expert. Most law firms practising international arbitration keep databases of their preferred experts in the prevalent fields of construction-related expertise. If expertise of a more obscure nature is required, the client will probably be able to suggest appropriate candidates. Another option is to contact international construction and engineering consultancy organisations that can draw from a large pool of experts in various fields and broker between counsel and expert candidates.[11]<\/sup><\/a> Counsel may also reach out to the leading arbitration institutions.[12]<\/sup><\/a><\/p>\n\n\n\n

Regardless of how an expert candidate is found, it is important to conduct an interview with the potential expert, typically via telephone or videoconference, before the decision is made on whether to retain them. The main purpose of the expert interview is to enable a detailed discussion about the content of the expert witness\u2019s curriculum vitae (CV), to provide the expert with more detail regarding the issues in dispute, to allow the expert to ask further questions to confirm their expertise and availability, and to allow counsel to assess the candidate\u2019s abilities as an expert witness and how they will fit into the team. There may also be some discussion regarding the expert\u2019s preliminary view on certain aspects of the case. If the expert has concerns about their expertise in certain areas, they should be forthcoming about them.<\/p>\n\n\n\n

A number of factors will influence the decision regarding the choice of an expert:<\/p>\n\n\n\n