THE EXPERT WITNESS EPISODE 3

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

27 July 2021

Arbitration #141

You have heard the two experts – so have your winger arbitrators. You have also listened to the closing speeches of the two trade representatives or counsel – dependent on whether lawyers are allowed to appear before you. And now you have to decide between the two experts who have given different opinions.

Here you cannot chicken out and put into the award “The Tribunal preferred the evidence of A to B.” You have two hurdles to jump;- first, which expert does the Tribunal prefer? and, second, why the Tribunal prefers expert A to expert B.

So – as between the experts you need to bear in mind the following. First, what the experts have actually said. Second, the extent to which what they have said is given authority by their respective qualifications + experience. Third, the relationship between their respective qualifications and what they have said. Fourth, where the weight of the evidence in terms of general principle lies – that is to say the arguments being advanced and the support the arguments find in the technical and scientific community.

There are other issues – for example; were the experts clear and to the point in their answers to questions or were they equivocal + uncertain? Did they overtalk and engage in bluster? Did they avoid or evade key issues? Were they credible witnesses or was their evidence contradictory? And, finally, were they composed or were they flustered?

You, the Chair, then have to put into words the decisions that the Tribunal has reached – unanimously or by a majority. But your words are important. You are producing a reasoned award and you need to explain to the Judge, in the event there is an appeal, why you preferred A to B. This is a skill that you need to acquire. It is all about balance and clarity. Look at what you have drafted and ask yourself Have I got it right? The wingers are, here, a valuable critical aid.

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