Thomas hofbauer the role of the expert witness in arbitration

THE ROLE OF THE EXPERT WITNESS 30th November 2015, Frenkfurt am Main, 2nd December 2015, Düsseldorf Thomas Hofbauer, Senior Vice President, International Claims & Consulting Group

MANAGING RISK ON MAJOR PROJECTS IN SOUTH EAST ASIA

Why claims fail … … outside a court room

EOT - CLAIM

The other party must understand your claim and must be in the position to justify your position.

© Hill International - slide 2

Why claims fail … … when Experts are involved

The same is true for the Expert. A claim is basically the story of a certain event that caused additional tasks and therefore additional efforts. Whether Experts are party or tribunal appointed they must (at least) understand the following three steps:


Effort

Task

Event

Why claims fail … … Where are the hurdles?


Effort

Task

Event

Why claims fail … … not knowing what is going on


Effort

Task

Events like disruptions or scope changes are

Seen as own scope

Seen within own risk

Overseen Forgotten Not

communicated

Why claims fail … … You always find solutions …


Effort

Additional tasks are

Not definded Not recorded Not

communicated

Event

Why claims fail … … Customer is king …


Additional time and financial exposure is

Not definded Not recorded Not

communicated

Additional tasks are

Events like disruptions or scope changes are

Why claims fail … … finally, if …


Effort

Task

Event

NO

NO

The Expert … Eyes open …

Don’t be late … “By the time a major dispute arises, most of the key drivers to the outcome of the dispute have been set in stone … Of the matters that are left to be influenced or controlled, the most important is the selection of experts to assist the preparation and presentation of the case. … Whether you need a process engineer or a delay analyst, there is inevitably a select club of the world’s best experts. Choosing the wrong one (or being too late to choose the best candidate) can have major impacts on your prospects of success.”


The Expert … party appointed vs tribunal appointed

Just a few considerations … • Do tribunal appointed experts exist outside Europe? • Is there a difference in the strategic approach of

party appointed or tribunal appointed experts? • How neutral is a party appointed expert? • How neutral can a party appointed expert be? • How credible is the analysis of a party appointed

expert? • Can neutral analysis of cases lead to different

results?


The Expert … Expectations…

Compania Naviera S.A. v. Prudential Assurance Co. Ltd (The "Ikarian Reefer") [1993] 2 Lloyd's Rep. 68 • The evidence should be independent. • The expert’s opinion should be unbiased and related

to matters within his expertise. • He should state the facts or assumptions on which

his opinion is based, and consider facts which could detract from his opinion.

• He should state when a question falls outside his expertise.

• He should state if insufficient data is available. • If, after exchanging reports, he changes his view this

should be communicated to other side and court. • Where he refers to any documents these must be

provided at the time of exchanging reports. © Hill International - slide 11

The Expert … No good …

Great Eastern Hotel Co Ltd v John Laing Construction Ltd & Others [2005]EWHC 181(TCC) About Mr C: “I reject the expert evidence of Mr. C as to the performance of Laing as Contract Manager in relation to periods 1 and 2. He has demonstrated himself to be lacking in thoroughness in his research and unreliable by reason of his uncritical acceptance of the favourable accounts put forward by Laing.”


The Expert … good …

Great Eastern Hotel Co Ltd v John Laing Construction Ltd & Others [2005]EWHC 181(TCC) About Mr W: “I prefer the evidence of Mr. W who was an impressive and conscientious witness who showed that he approached his role as an expert in an independent way and was prepared to make concessions when his independent view of the evidence warranted it.”



SPE International Ltd v PPC (UK) Ltd and John Glew [2002] EWHC 881 “With respect to Mr D, I doubt if there has often been an expert less expert than he. Mr. D’s main difficulty is that he has no relevant expertise. He is an ex-RAF officer, who no doubt has a specialised knowledge and experience of many fields of human endeavour, but they do not include the field of shot blasting…”



SPE International Ltd v PPC (UK) Ltd and John Glew [2002] EWHC 881 … “There is no record of any instructions he was ever given, and he said he did not make one because no-one told him he should do so. He wrote letters seeking information supposedly relevant to his report, but did not think to keep copies of them - since no-one told him to …



SPE International Ltd v PPC (UK) Ltd and John Glew [2002] EWHC 881 … It is probably because Mr D is wholly inexperienced in Court procedure, and received insufficient guidance from the legal advisers… Beyond being told that he had should try to be impartial and fair, he received no guidance from anyone as to what was required or expected of him as an expert.”


Persuade … A picture speaks a thousand words …

A woman /ˈwʊmən/, pl: women /ˈwɪmɨn/ is a female human. The term woman is usually reserved for an adult, with the term girl being the usual term for a female child or adolescent. However, the term woman is also sometimes used to identify a female human, regardless of age, as in phrases such as "women's rights". Women are typically capable of giving birth from puberty onwards, though older women who have gone through menopause and some intersex women cannot. Throughout history women have assumed various social roles in occupation. In some cultures, a majority of women have adopted specific appearances, such as those regulated by dress codes.

www.wikipedia.org


Persuade … A picture speaks a thousand words …


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THOMAS HOFBAUER SENIOR VICE PRESIDENT, INTERNATIONAL CLAIMS & CONSULTING GROUP

T: +49 89 3603 8020 M: +49 151 122 364 19 E: [email protected] I: WWW.HILLINTL.COM

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Thomas hofbauer the role of the expert witness in arbitration