Examining Expert Witnesses In International Oil & Gas Arbitrations - Chapter 20 - Leading Practitioners’ Guide to International Oil & Gas Arbitration

Author(s):

Doug S. Jones

Page Count:

16 pages

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Published:

August, 2015

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Originally from The Leading Practitioners' Guide to International Oil & Gas Arbitration

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I. INTRODUCTION

Expert witness testimony, particularly in the written form, has

become a common feature of the international arbitration landscape

in many jurisdictions. Current practice in the evidentiary process of

international arbitration is a product of hybridisation, where elements

of both common law and civil law procedure are drawn upon to

guide how international arbitration should be conducted. There are

obvious benefits to this approach, principal among them being the

assurance of certainty in process and fairness amongst parties,

regardless of their jurisdiction of origin.

More recently, however, arbitration practitioners have posed

significant questions as to whether the present practice is delivering

the best outcome, and whether it is contributing to the effectiveness

and efficiency of the arbitral process. The existence of codified

evidentiary procedures that are fair and efficient is of paramount

importance in the arbitration of disputes in the oil and gas industries,

given the inherently high levels of uncertainty and risk associated

with these types of ventures. Although many projects in the oil and

gas industries proceed to conclusion without dispute, where disputes

do eventuate, they almost invariably involve highly complex issues of

fact and law. These complex issues attract high volumes of document

discovery and expert witness testimony. Collectively, these

characteristics of oil and gas projects amplify the challenges to

evidentiary procedures which are highlighted in this chapter.

This chapter considers the current approach to expert witness

testimony in international arbitration, paying particular attention to

the ethical obligations of counsel when engaging and instructing

expert witnesses. The chapter will suggest flaws with the way expert

witness testimony is dealt with and how these challenges are

amplified by the complexities presented by oil and gas arbitrations.

Finally, this chapter will propose some recommendations for how the

current approach could be reformed. The overriding consideration is

how to harness expert witness testimony as a tool for promoting

greater fairness and efficiency in the arbitral process. There has been

some development in relation to international guidelines and rules,

which have addressed these concerns in part.

This chapter concludes by discussing the potential for proactive

case management by arbitral tribunals, in order to assist counsel in

meeting their ethical obligations to keep time and cost in
international oil and gas arbitrations to a minimum.