Expert Evidence: Conflicting Assumptions and How to Handle Them in Arbitration - ASA Special Series No. 46
This volume of the ASA Special Series is a collection of the papers presented at the ASA 2018 Annual Conference dedicated to the topic “Expert Evidence: Conflicting Assumptions and How to Handle them in Arbitration”. The topic is not limited to best practices concerning expert evidence in arbitration. The focus is broader and in fact rather different.
The idea for this conference topic emerged from the observation that international arbitration brings together scholars and practitioners from different legal and educational backgrounds, with different experiences and perspectives as to the role, duties, and powers of experts in the judicial (or arbitral) process. Depending upon their backgrounds and experience, parties, counsel, and arbitrators may have very different and “conflicting” “assumptions and expectations” regarding the very concept and use of expert evidence.
The ASA Conference and the resulting papers aimed at exploring and discussing these conflicting assumptions and expectations. This collection of the conference presentations will thus help practitioners from various jurisdictions to identify those conflicting assumptions and expectations, to sharpen awareness of the different perspectives, to address possible misunderstandings as to the role of experts, and to develop views on how to handle related difficulties in practice.
PDF of Title Page and Table of Contents
Foreword
About the Editors
About the Contributors
CHAPTER 1 Conflicting Assumptions and Expectations—the Civil Law Perspective
Christopher Boog
CHAPTER 2 Instructing Experts
Doug Hall
CHAPTER 3 Instructions to Party-Appointed Experts Should Focus on Impartiality
Emine Eda Cerrahoglu Balssenn
CHAPTER 4 The Management of Experts in the Pre-Hearing Phase: Unpacking Assumptions and Expectations
Amanda Lees
CHAPTER 5 Conflicting Assumptions and Expectations on the Role of Expert Evidence in Arbitration: An Expert Perspective
James Nicholson
CHAPTER 6 The Use of Experts in International Arbitration—Specific Issues Relating to Legal Experts
Bernhard Berger
CHAPTER 7 The Assessment of Expert Evidence: The Case of Tribunal-Appointed Experts
Pierre Tercier
APPENDIX Protocol for the Use of Party-Appointed Expert Witness in International Arbitration
Official CIArb Guideline
EDITORS
Sébastien Besson is a Partner at Lévy Kaufmann-Kohler, a leading arbitration and litigation firm. He has represented clients in numerous arbitrations under a variety of arbitration rules, and in different jurisdictions. His experience includes serving as counsel, arbitrator and legal expert. Mr. Besson has published extensively on arbitration and resolution of sport disputes. Notably, he co-authored, with Professor Jean-François Poudret, the well-known treatise Comparative Law of International Arbitration (Sweet & Maxwell, London, 2007). He is a Professor at the University of Neuchâtel, and has taught several courses on arbitration and the settlement of commercial disputes, including in the Geneva Master in International Dispute Settlement programme. Mr. Besson studied at the University of Lausanne, where he received his doctorate in Law, and at Columbia University (New York), from where he holds an LLM.
Harold Frey is a Partner at Lenz & Staehelin, Zurich, where he Heads the Litigation and Arbitration practice. He has represented clients in numerous ad-hoc arbitrations and before the major arbitral institutions, at multiple seats and governed by a variety of substantive laws. Matters included a wide range of legal issues (such as joint venture, M&A, licensing and general contract law disputes) and industries (such as telecom, pharmaceutical and construction). Mr. Frey sits as arbitrator and acts as counsel in large and complex litigation proceedings before Swiss courts. He is a lecturer on arbitration at the University of Zurich and author of various publications in the arbitration field. Mr. Frey studied law at the University of Zurich (lic. iur.) and New York University School of Law (LLM).
CONTRIBUTORS
Bernhard Berger is a Partner at Kellerhals Carrard in Berne, Switzerland, where he is the head of the international arbitration practice. Mr. Berger has served as chair, sole arbitrator, co‑arbitrator and counsel in numerous international and domestic arbitrations under the rules of the major arbitral institutions as well as in ad hoc proceedings. His experience further includes appearances as legal expert on Swiss arbitration law in arbitration and court proceedings both in Switzerland and abroad; and as counsel in arbitration-related Swiss court proceedings, in particular on the recognition and enforcement, setting aside and revision of awards. Mr. Berger has an LL.M. from Harvard Law School and a Ph.D. (Dr. iur.) from the University of Berne. He has authored numerous treatises and articles in the fields of international arbitration, civil procedure and contract law, including a comprehensive book on International and Domestic Arbitration in Switzerland (3rd edition, 2015).
Christopher Boog is a Partner and Vice-Chair of the International Arbitration Practice at Schellenberg Wittmer. He divides his time between the firm's Singapore and Zurich offices. Mr. Boog represents clients in international commercial, investment and sports arbitration matters in civil and common law jurisdictions around the world as well as in setting-aside proceedings before the Swiss Supreme Court, and regularly sits as arbitrator in Europe, the Middle East and throughout Asia. A large part of Mr. Boog's practice focuses on complex construction and engineering disputes in the energy, mining and metals, infrastructure, shipping and manufacturing sectors as well as on investor-state disputes. Mr. Boog is admitted to the Swiss and Singapore bars (Foreign Lawyer), holds law degrees from Universities in Switzerland, the Netherlands and the U.S., a PhD from the University of Zurich, and is a Fellow of both the Chartered Institute of Arbitrators and the Singapore Institute of Arbitrators. He is a Vice-President of the Arbitration Court of the Swiss Chambers' Arbitration Institution, a member of the SIAC Users' Council and Vice Chair of the IPBA International Construction Projects Committee.
Eda Cerrahoğlu Balssen leads the Arbitration Department of Cerrahoğlu Law Firm, focusing on international and domestic commercial arbitration. In her practice of almost 15 years, she has advised Turkish and multinational clients mainly in banking, construction, energy, retail and mobile phones sectors. She has been recommended by Legal 500 for Dispute Resolution in Turkey and has been listed among Experts in the field of arbitration in Turkey by Who is Who Legal. She has taught courses in international arbitration in Yeditepe University and Bahçeşehir University in Istanbul. She is also teaching a course on "Doing Business in Turkey" in the LLM Program at the University of Fribourg Faculty of Law. She participates as speaker in major international conferences on international arbitration organized by ASA, ICC and Kluwer Law. She has a BA (magna cum laude) in Economics & International Relations from Brown University (Providence, Rhode Island, USA). She received her JD from University of Virginia Faculty of Law (Charlottesville, Virginia, USA) and was admitted to the New York Bar in 2006 and to the Istanbul Bar in 2009.
Doug Hall is a Partner at Smith & Williamson in London. He is the head of the forensic services department and leads a specialist forensic accounting, investigations and forensic technology team. His own practice is acting as an Expert Witness and adviser in a diverse range of cases from small disputes to cases with damages in the £100s million. Mr. Hall has extensive experience of high value and complex commercial disputes spanning over 28 years, including cross-border disputes, professional negligence actions, matrimonial cases, personal injury, clinical negligence and fatal accident cases. He acts for Claimants, Defendants / Respondents and has acted as a Single Joint Expert. He has given evidence in the High Court and at International Arbitrations and before other tribunals on numerous occasions and has contributed to the successful resolution of disputes by negotiation and formal mediation. Mr. Hall is highly experienced in the mechanics of the Civil Procedure Rules and often acts as an advisor, pre-action, to identify the basis of a dispute and to assist in planning a practical resolution.
Amanda Lees is a Partner in the international arbitration group of SIMMONS & SIMMONS based in Singapore, where she has practiced since 2012. Ms Lees has 18 years of experience in cross border dispute resolution. She has acted in complex litigation, international arbitration and related court applications (stay, interim measures, anti-suit and anti-arbitration applications), mediations and expert determinations in Asia, Europe and Australia. Amanda has acted in a broad range of commercial disputes across different industries involving multiple jurisdictions, including large energy and mining disputes, commodities disputes, telecommunications and technology disputes, banking and insurance disputes and manufacturing disputes. Most recently Amanda represented the Republic of Indonesia in successfully defending a USD580M claim under the India-Indonesia BIT. Amanda sits regularly as an arbitrator and is listed on the SIAC Panel and ICDR (AAA) Panel of arbitrators. She is a Fellow of the Chartered Institute of Arbitrators (CIArb) and Singapore Institute of Arbitrators (SIArb) and Director of the Singapore branch of CIArb. Ms Lees is a regional co‑leader of the ASA South-East Asia Chapter and a member of the ACICA Rules Committee.
James Nicholson is a Senior Managing Director in FTI Consulting's Singapore office, leads FTI's economic and financial consulting activities in the APAC region, and co-ordinates the firm's International Arbitration practice globally, having previously founded and led for 10 years FTI Consulting's 20-strong Paris disputes team. James is a CFA charterholder, and holds degrees in economics and public policy from the universities of Harvard and Oxford. James has 25+ years' experience as a consultant on matters of finance, strategy, and economics; since 2005, his work has primarily involved issues of the identification and valuation of lost profits, and the valuation of businesses, financial assets including shareholdings, and other assets, and of wasted costs. James has testified 30+ times before commercial and investment treaty tribunals on matters relating to a wide range of industries and issues in dispute. James is President of the Standing Committee of the ICC's International Centre for ADR, which advises the Centre in the application of the ICC's Expert Rules.
Pierre Tercier is an Emeritus Professor of the University of Fribourg, the Honorary Chairman of the ICC International Court of Arbitration, and a prominent international arbitrator with extensive experience in international arbitration, having served mainly as President in more than one hundred international arbitrations under various rules (i.e., ICC, ICSID, LCIA, SIAC, CRCICA, SCC, UNCITRAL etc.) covering various sectors. For over a generation, Professor Tercier has also been one of the most respected legal scholars in the country. He has authored more than 250 legal writings, focusing on contract law and international arbitration. He was Professor of Law and the Dean of the University of Fribourg. He also taught at the University of Geneva and the EPFL in Lausanne, in Paris I, Paris II, Paris IV, Cambridge University, Columbia Law School and at the Max-Planck Institute for private international law. Currently, Professor Tercier teaches selected topics in international arbitration at the University of Geneva / Graduate Institute for International and Development Studies, Torino University and Georgetown University Law Center, among other institutions. Professor Tercier is a former President of the International Court of Arbitration of the ICC and a former Chairman of the Swiss Commission on Competition, the Swiss Cartel Commission and the Swiss Insurance Law Society.
EDITORS
Sébastien Besson is a Partner at Lévy Kaufmann-Kohler, a leading arbitration and litigation firm. He has represented clients in numerous arbitrations under a variety of arbitration rules, and in different jurisdictions. His experience includes serving as counsel, arbitrator and legal expert. Mr. Besson has published extensively on arbitration and resolution of sport disputes. Notably, he co-authored, with Professor Jean-François Poudret, the well-known treatise Comparative Law of International Arbitration (Sweet & Maxwell, London, 2007). He is a Professor at the University of Neuchâtel, and has taught several courses on arbitration and the settlement of commercial disputes, including in the Geneva Master in International Dispute Settlement programme. Mr. Besson studied at the University of Lausanne, where he received his doctorate in Law, and at Columbia University (New York), from where he holds an LLM.
Harold Frey is a Partner at Lenz & Staehelin, Zurich, where he Heads the Litigation and Arbitration practice. He has represented clients in numerous ad-hoc arbitrations and before the major arbitral institutions, at multiple seats and governed by a variety of substantive laws. Matters included a wide range of legal issues (such as joint venture, M&A, licensing and general contract law disputes) and industries (such as telecom, pharmaceutical and construction). Mr. Frey sits as arbitrator and acts as counsel in large and complex litigation proceedings before Swiss courts. He is a lecturer on arbitration at the University of Zurich and author of various publications in the arbitration field. Mr. Frey studied law at the University of Zurich (lic. iur.) and New York University School of Law (LLM).
CONTRIBUTORS
Bernhard Berger is a Partner at Kellerhals Carrard in Berne, Switzerland, where he is the head of the international arbitration practice. Mr. Berger has served as chair, sole arbitrator, co‑arbitrator and counsel in numerous international and domestic arbitrations under the rules of the major arbitral institutions as well as in ad hoc proceedings. His experience further includes appearances as legal expert on Swiss arbitration law in arbitration and court proceedings both in Switzerland and abroad; and as counsel in arbitration-related Swiss court proceedings, in particular on the recognition and enforcement, setting aside and revision of awards. Mr. Berger has an LL.M. from Harvard Law School and a Ph.D. (Dr. iur.) from the University of Berne. He has authored numerous treatises and articles in the fields of international arbitration, civil procedure and contract law, including a comprehensive book on International and Domestic Arbitration in Switzerland (3rd edition, 2015).
Christopher Boog is a Partner and Vice-Chair of the International Arbitration Practice at Schellenberg Wittmer. He divides his time between the firm's Singapore and Zurich offices. Mr. Boog represents clients in international commercial, investment and sports arbitration matters in civil and common law jurisdictions around the world as well as in setting-aside proceedings before the Swiss Supreme Court, and regularly sits as arbitrator in Europe, the Middle East and throughout Asia. A large part of Mr. Boog's practice focuses on complex construction and engineering disputes in the energy, mining and metals, infrastructure, shipping and manufacturing sectors as well as on investor-state disputes. Mr. Boog is admitted to the Swiss and Singapore bars (Foreign Lawyer), holds law degrees from Universities in Switzerland, the Netherlands and the U.S., a PhD from the University of Zurich, and is a Fellow of both the Chartered Institute of Arbitrators and the Singapore Institute of Arbitrators. He is a Vice-President of the Arbitration Court of the Swiss Chambers' Arbitration Institution, a member of the SIAC Users' Council and Vice Chair of the IPBA International Construction Projects Committee.
Eda Cerrahoğlu Balssen leads the Arbitration Department of Cerrahoğlu Law Firm, focusing on international and domestic commercial arbitration. In her practice of almost 15 years, she has advised Turkish and multinational clients mainly in banking, construction, energy, retail and mobile phones sectors. She has been recommended by Legal 500 for Dispute Resolution in Turkey and has been listed among Experts in the field of arbitration in Turkey by Who is Who Legal. She has taught courses in international arbitration in Yeditepe University and Bahçeşehir University in Istanbul. She is also teaching a course on "Doing Business in Turkey" in the LLM Program at the University of Fribourg Faculty of Law. She participates as speaker in major international conferences on international arbitration organized by ASA, ICC and Kluwer Law. She has a BA (magna cum laude) in Economics & International Relations from Brown University (Providence, Rhode Island, USA). She received her JD from University of Virginia Faculty of Law (Charlottesville, Virginia, USA) and was admitted to the New York Bar in 2006 and to the Istanbul Bar in 2009.
Doug Hall is a Partner at Smith & Williamson in London. He is the head of the forensic services department and leads a specialist forensic accounting, investigations and forensic technology team. His own practice is acting as an Expert Witness and adviser in a diverse range of cases from small disputes to cases with damages in the £100s million. Mr. Hall has extensive experience of high value and complex commercial disputes spanning over 28 years, including cross-border disputes, professional negligence actions, matrimonial cases, personal injury, clinical negligence and fatal accident cases. He acts for Claimants, Defendants / Respondents and has acted as a Single Joint Expert. He has given evidence in the High Court and at International Arbitrations and before other tribunals on numerous occasions and has contributed to the successful resolution of disputes by negotiation and formal mediation. Mr. Hall is highly experienced in the mechanics of the Civil Procedure Rules and often acts as an advisor, pre-action, to identify the basis of a dispute and to assist in planning a practical resolution.
Amanda Lees is a Partner in the international arbitration group of SIMMONS & SIMMONS based in Singapore, where she has practiced since 2012. Ms Lees has 18 years of experience in cross border dispute resolution. She has acted in complex litigation, international arbitration and related court applications (stay, interim measures, anti-suit and anti-arbitration applications), mediations and expert determinations in Asia, Europe and Australia. Amanda has acted in a broad range of commercial disputes across different industries involving multiple jurisdictions, including large energy and mining disputes, commodities disputes, telecommunications and technology disputes, banking and insurance disputes and manufacturing disputes. Most recently Amanda represented the Republic of Indonesia in successfully defending a USD580M claim under the India-Indonesia BIT. Amanda sits regularly as an arbitrator and is listed on the SIAC Panel and ICDR (AAA) Panel of arbitrators. She is a Fellow of the Chartered Institute of Arbitrators (CIArb) and Singapore Institute of Arbitrators (SIArb) and Director of the Singapore branch of CIArb. Ms Lees is a regional co‑leader of the ASA South-East Asia Chapter and a member of the ACICA Rules Committee.
James Nicholson is a Senior Managing Director in FTI Consulting's Singapore office, leads FTI's economic and financial consulting activities in the APAC region, and co-ordinates the firm's International Arbitration practice globally, having previously founded and led for 10 years FTI Consulting's 20-strong Paris disputes team. James is a CFA charterholder, and holds degrees in economics and public policy from the universities of Harvard and Oxford. James has 25+ years' experience as a consultant on matters of finance, strategy, and economics; since 2005, his work has primarily involved issues of the identification and valuation of lost profits, and the valuation of businesses, financial assets including shareholdings, and other assets, and of wasted costs. James has testified 30+ times before commercial and investment treaty tribunals on matters relating to a wide range of industries and issues in dispute. James is President of the Standing Committee of the ICC's International Centre for ADR, which advises the Centre in the application of the ICC's Expert Rules.
Pierre Tercier is an Emeritus Professor of the University of Fribourg, the Honorary Chairman of the ICC International Court of Arbitration, and a prominent international arbitrator with extensive experience in international arbitration, having served mainly as President in more than one hundred international arbitrations under various rules (i.e., ICC, ICSID, LCIA, SIAC, CRCICA, SCC, UNCITRAL etc.) covering various sectors. For over a generation, Professor Tercier has also been one of the most respected legal scholars in the country. He has authored more than 250 legal writings, focusing on contract law and international arbitration. He was Professor of Law and the Dean of the University of Fribourg. He also taught at the University of Geneva and the EPFL in Lausanne, in Paris I, Paris II, Paris IV, Cambridge University, Columbia Law School and at the Max-Planck Institute for private international law. Currently, Professor Tercier teaches selected topics in international arbitration at the University of Geneva / Graduate Institute for International and Development Studies, Torino University and Georgetown University Law Center, among other institutions. Professor Tercier is a former President of the International Court of Arbitration of the ICC and a former Chairman of the Swiss Commission on Competition, the Swiss Cartel Commission and the Swiss Insurance Law Society.
PDF of Title Page and Table of Contents
Foreword
About the Editors
About the Contributors
CHAPTER 1 Conflicting Assumptions and Expectations—the Civil Law Perspective
Christopher Boog
CHAPTER 2 Instructing Experts
Doug Hall
CHAPTER 3 Instructions to Party-Appointed Experts Should Focus on Impartiality
Emine Eda Cerrahoglu Balssenn
CHAPTER 4 The Management of Experts in the Pre-Hearing Phase: Unpacking Assumptions and Expectations
Amanda Lees
CHAPTER 5 Conflicting Assumptions and Expectations on the Role of Expert Evidence in Arbitration: An Expert Perspective
James Nicholson
CHAPTER 6 The Use of Experts in International Arbitration—Specific Issues Relating to Legal Experts
Bernhard Berger
CHAPTER 7 The Assessment of Expert Evidence: The Case of Tribunal-Appointed Experts
Pierre Tercier
APPENDIX Protocol for the Use of Party-Appointed Expert Witness in International Arbitration
Official CIArb Guideline