See My Daily Comment Below
THE EXPERT WITNESS
Arbitration #139
Arbitrators are often required to determine issues/disputes which may be scientific, technological or highly specialised. These may require an explanation of technical jargon, methodology, professional standards, custom and practice and national + international recognised norms + models. What is the expected professional standard and has the expert failed to meet that standard?
Let’s bear in mind three points. First, the expert is not the arbitrator and does not exercise the function of an arbitrator. Second, expert evidence, when all is said and done, is just an opinion and third, an arbitrator can reject the opinion. Experts can, and sometimes do, help but the decision is made by you, the arbitrator.
So don’t be in awe. Don’t read the qualifications and quake. Do be respectful and acknowledge the expert’s expertise + experience but don’t be cowed. Don’t flinch or fawn. Be yourself. You have been appointed because you can do your job and you are the boss. I think I have said this before!
So, consider the expert’s evidence in a reasoned and detached manner. Are the expert’s qualifications relevant to the facts in issue? Is the expert’s experience relevant to the facts in issue? And do bear in mind that qualifications + experience are two different issues.
Another point – has the expert’s evidence been given with true impartiality and objectivity? And another question – where there is a dispute between two experts, is it genuine or have one or both gone “partisan”. It happens. Some experts are sturdily independent – others are flakey + tend to one-sidedness. And then the big question for you – what weight should you attach to the expert evidence?
So the questions you need to ask yourself;-
Is the expert neutral? Is the expert reliable? Is the expert’s evidence relevant and material?
Graham Perry On Dispute Resolution
This website serves a number of purposes.
First, it enables me to bring my skills and experience to a wider audience. I remain active as an arbitrator, a mediator, a party advacate and this website tells you about me.
Second, it fulfils a long-held desire to promote a forum for discussion of dispute resolution issues. I have for 20 years been the Chair of the Arbitration Lunch Club together with the Hon Secretary, David Barnett. Pre-Covid we would meet three times a year for a Lunch sponsored by a City of London Law Firm and at the Lunches we would hold a discussion of two topical dispute resolution issues sometimes with the participation of Judges Woolf, Rix, Coleman and Sumption. Covid has triggered the Club to go Zoom-wide with participants drawn from around the world.
Third, there is a current need for a lively inter-active website that, on a daily basis, enables dispute resolvers from around the world to participate in discussion, debate, and disagreement on issues affecting the conduct and development of arbitration and mediation. Contributions can be academic as well as practical; studious as well as flippant; argumentative as well as collegiate.
Why not read my articles on dispute resolution.?
Should you need any advice or require my services contact me today!
Goals
My goal is to make the website lively and encouraging to arbitrators and mediators; to put restraint and self-consciousness to one side and play their part in making dispute resolution lively, informative and progressive. We are always moving forward. Elsewhere on this site, you will find a page which tells you how to become involved.
SOMETHING UNUSUAL
Here’s an interesting situation.
You are a party-appointed arbitrator in a Tribunal of 3. The parties are buying and selling soya beans. They have a falling out over the terms of a Trade Agreement.
Sellers sues Buyer. The dispute is commercial and relates to the minimum quantities in monthly shipments over a 12 month period. A normal commercial dispute.
But then fireworks and Buyers send strongly worded letters to public bodies alleging that Sellers have committed fraud. Sellers argue that they have been libelled and add a claim for damages for libel to the claim about minimum quantities.
Does the Tribunal have to address the libel claim? Two arguments;-
1. The arbitrators are commercial people appointed for their commercial knowledge. They know nothing about libel. They refuse to adjudge the libel claim.
2. They have to handle the libel claim. It is a dispute. The parties want the arbitrators to decide the claim. The arbitrators have no choice. Deal with it.
This issue went to the courts and the Commercial Court made a judgment. But let me throw this open for comment. How do you think the arbitrators should act. Let me hear from you and then I will let you know what the Court said.
Graham Perry.
A Family Mediation
You are a family mediator. You are approached jointly by a husband and wife for assistance in a matrimonial break up. There are two children of the marriage – a boy aged 12 and a girl aged 14. They are both represented by separate solicitors.
The mediation proceeds. A mediation agreement is signed. Letters are exchanged. Meetings take place. You become aware that there are personal issues between the parents concerning their relationship. They do not concern you as such because the divorce is proceeding and these personal issues do not impinge upon the issues in dispute which are to do with financial arrangements, holiday arrangements and involvement with schools. In due course, these matters are agreed and recorded in the Final Agreement which is signed by the husband, the wife and yourself. Your fee is paid.
Three years later your wife has passed away through illness and you are alone without children. In a social setting, you happen to meet up with the wife and a relationship commences. Out of the blue, you receive a letter from the former husband’s solicitors alleging non-disclosure by you of the relationship which, on their information, was current at the time of the mediation. Further, the letter refers to a lack of impartiality on your part and material non-disclosure of the relationship and indicates a claim for damages will follow.
What do you do?
About Me
Graham Perry qualified as a solicitor in 1973 after graduating from Churchill College, Cambridge where he studied History and Economics. He practised for nine years and then made a major career change to become Managing Director, of London Export, a UK company formed in 1953 to concentrate on trade and business with the Peoples’ Republic of China. Since 1990 Graham has been an international dispute resolver of commercial problems resolving commercial disputes.
Experienced Dispute Resolver
Commenced my career as a dispute resolver combining my legal skills and commercial experience. I am an active arbitrator and trade representative in London with the Grain and Feed Trade Association (GAFTA), the Federation of Oils, Seeds and Fats (FOSFA), the London Metal Exchange (LME) and, occasionally, with the Sugar Association. I have a growing practice in shipping disputes and sit on the arbitration committee of the LME and FOSFA. I am a frequent lecturer and writer on commodity arbitration and mediation, giving lectures in China, India, Ivory Coast, Bhutan and the United Kingdom. I am an accredited CEDR mediator.