EXPERT WITNESSES IN ARBITRATION
CD: In what types of disputes are parties bringing expert witnesses into the process? Are their services proving beneficial in particular areas and industries?
Bell: Experts are frequently used in arbitrations. In most cases, they are found in disputes in which damages quantum is a consideration or where issues of industry conduct are in question. Industry expertise may be required to properly characterise a damages issue, but industry experts also are being used more and more in disputes regarding the breakdown of commercial agreements – for example, whether reasonable efforts were used to develop or commercialise a new product or technology and what guidelines are used by the industry for commercial practices. In addition, more arbitrators are requesting that the parties in the dispute prepare a list of experts from which they could choose in order to assist the arbitrators, particularly in the calculation of damages.
Hammes: Experts are usually engaged in disputes whenever an independent third party assessment of a particular issue is required which is considered critical for making the parties’ case. The assessment of liability may involve law professors providing their opinion on a legal argument or engineers to render an opinion on whether a technical failure caused the damaging event. The quantum phase may require technical assessments, market evaluations and financial analysis, all of which is ultimately consolidated in the assessment of damages. Technical experts are typically engaged in insurance claims and construction disputes to assess the malfunction of a device or the reason for the delay and disruption of a project. Purchase price disputes will regularly involve an accountant. Lost profit claims will usually require a financial expert.
Oct-Dec 2013 issue
Charles River Associates
Freshfields Bruckhaus Deringer US LLP
Skadden, Arps, Slate, Meagher & Flom LLP