In the world of legal disputes, the nuanced understanding and interpretation of technical, financial, or specialised matters often goes beyond the expertise of legal professionals and decision-makers.
As such, the engagement of experts has become crucial in providing clarity, aiding in the fair resolution of disputes, and, when utilised effectively, preventing disputes from escalating to more formal and adversarial forums.
The role of experts in arbitration, Dispute Adjudication Boards (DABs), and early determination reports in the Middle East region is evolving quickly as the business landscape becomes more complex. Subsequently, we are seeing a substantive shift in the quality of experts practising in the region.
Some of the recent advances in the role of expert witnesses in the region include:
1. Arbitration
In arbitration, the parties have the right to engage with an expert when preparing their case, where the expert will be subject to cross-examination during the proceedings.
In many jurisdictions the arbitration tribunal also has the right to appoint a neutral expert to answer a specific technical question on behalf of the arbitration tribunal.
Those tools are available during the proceedings to allow for the following:
Increasing specialisation: As the complexity of regional projects and transactions increases—particularly in sectors like construction, energy, and technology—there is a greater demand for experts with specialised knowledge. Experts in these fields not only contribute technical understanding but also help arbitral tribunals make informed decisions on highly technical matters.
Proactive involvement: Experts are being involved earlier in the arbitration process to provide preliminary assessments that can guide the proceedings. This early involvement helps to narrow down the issues in dispute, potentially leading to quicker resolutions.
Enhanced credibility and neutrality: The credibility of experts is paramount, leading to stricter scrutiny of their qualifications and independence. There is a growing trend towards the appointment of tribunal-appointed experts rather than party-appointed ones to ensure neutrality and reduce the incidence of duelling experts.
2. DABs
In large-scale construction and infrastructure projects, DABs are increasingly becoming the norm in the region’s master contracts. Experts on these boards are engaged regularly, not just when disputes arise but throughout the project lifecycle. This continuous engagement helps to identify and address potential issues before they escalate into full-blown disputes. They allow for the following:
Diverse expertise: DABs are seeing a diversification in the expertise of their members. While traditionally populated by legal professionals, now there is a greater inclusion of technical experts, including engineers and industry specialists, who can offer practical insights pertinent to the specific nature of the dispute.
Focus on training and standards: As the use of DABs grows in the region, there is a corresponding increase in training programmes designed to prepare experts to fulfil their roles effectively. This training often focuses on the procedural aspects of DAB operations, as well as on enhancing sector-specific knowledge.
3. Early determination reports
Early determination reports by experts are becoming more critical as decision-support tools in disputes. These reports provide an early, expert evaluation of the merits of a case, which can help parties decide whether to settle or proceed with full litigation or arbitration. Moreover, they provide:
Cost-effective dispute management: By providing a clear, expert-backed perspective on disputes at an early stage, these reports can lead to more cost-effective dispute management. They help avoid the time and expense of a prolonged dispute resolution process by facilitating informed decisions early on.
Integration with legal and technical analysis: Experts preparing early determination reports increasingly integrate both legal and technical analysis to provide a comprehensive view of the issues at hand. This integration is crucial in complex sectors where the legal and technical aspects are deeply intertwined.
Expert determination in advance of arbitration
There are many benefits of engaging experts early and using expert determination before matters escalate to courts or arbitration, serving as an effective dispute avoidance strategy. By providing clear, authoritative advice on complex matters, experts can help parties align their expectations, identify potential issues before they escalate, and resolve disagreements through informed discussions. Regular expert audits, risk assessments, and compliance checks can further mitigate the risk of disputes.
This process offers several advantages:
Speed and efficiency: Although the determination is not binding, expert determination is typically faster than court proceedings or arbitration.
Cost-effectiveness: It is generally more cost-effective due to its expedited nature.
Specialisation: Experts with specific knowledge pertinent to the dispute’s subject matter can provide more accurate and relevant assessments.
Confidentiality: Unlike court proceedings, expert determination can be kept confidential, protecting sensitive information and commercial reputations.
It is also important to note significant differences between court-appointed experts and those engaged during arbitration:
Appointment and control: Court-appointed experts are selected by the judicial system, and parties have limited say in the choice. Conversely, in arbitration, parties often have the opportunity to select their experts or at least agree on the appointment, providing more control over the process.
Role and influence: Court-appointed experts provide independent opinions to inform the court’s decision-making on the technical matter and not on the application of the law. While experts in arbitration, depending on who appointed them, might help the parties bolster their case, potentially acting as advocates rather than impartial advisors.
Procedural flexibility: The process and extent to which experts contribute can vary more significantly in arbitration, tailored to the needs of the case and the parties’ agreement.
Looking ahead, we expect to see expert witnesses expanding their influence and the institutional framework being further developed in the GCC to ensure their successful use in arbitration proceedings.
By Fatima Balfaqeeh, managing partner of Balfaqeeh Advocates & Legal Consultants.
