The importance of local knowledge

Lee Barry, Quantum Expert, describes some of the nuances associated with expert services in the Middle East compared to those of Common Law in the UK.

This article looks briefly at some of the nuances associated with undertaking expert services in the Middle East region compared to Common Law jurisdictions such as the United Kingdom.  It explores the manner in which international arbitration is conducted, provides a brief comparison of arbitration as opposed to court proceedings, and looks at the diverse nature of the market and the parties involved in large complex disputes.

It is fair to describe the arbitration industry as having developed significantly over the past ten years within the Middle East region, although the various countries in the region are in different stages of development.  Many of the Middle Eastern countries adopt international rules such as International Chamber of Commerce (“ICC”) and the London Court of International Arbitration (“LCIA”) and some of the local arbitration rules are based on international rules (such as DIAC).  In addition, many tribunals contain Common Law educated arbitrators as well as the legal representation also primarily having a Common Law background.

As such, the trend seems to be that many international arbitrations are conducted similarly to those in other parts of the world, however, the arbitrators are mindful of taking into account the local laws under which the contract is governed. 

Evidence in Court

The court systems where expert work is involved is somewhat different.  It is unusual for an expert to give a testimony in court proceedings although this does occur in some instances. Therefore, usually once the expert report has been submitted, the expert’s assignment is for the most part complete.

Commentary on Liability

It is often usual practice for the expert to address decisions on liability, or at least provide their opinion on such, whereas in International Arbitration the expert would almost always leave liability for the tribunal’s consideration.

Where legal representatives or even members of the Tribunal are more experienced in the court system, predominantly having a Civil Law background, this has on occasion caused a misunderstanding of the expert’s duties and their reports.  It is accepted in International Arbitration that an expert’s opinion is based upon a party having demonstrated liability sitting with the other party and therefore the comment “subject to liability” is not always explicitly stated within an expert’s report. 

In an arbitration a few years ago, I was cross examined by a local advocate who had extensive experience of court proceedings within the Middle East.  The first question put to me during the examination was “why have you told the Tribunal that the Defendant (whom the local advocate was representing) should pay the Claimant the said amount?”  In response to this, I had advised that the figures put forward in my expert report were subject to liability and that I had not given any opinion on liability.  In response, the local advocate asked why I hadn’t stated that in my report.  Although, as a general rule, I do not state that all my opinions are subject to liability (something the Tribunal in this case stated was the norm and what was expected from an expert), in hindsight and for the benefit of all parties, a paragraph confirming this may have been prudent. 

Understanding the Parties

Another key issue is the diversity of the parties, their legal representation and the Tribunal.  The decisions of the parties often take account of the behavioural traits of the people involved among other considerations.  This can result in misunderstandings or something being “lost in translation”.  Understanding the people involved will help the expert tailor the report in a way which can be fully comprehensive and understood by all.

The use of certain words which seem overly complicated or a structure with lengthy paragraphs, and even the use of Latin phrases may not be appropriate in certain instances and this should also be a key consideration for the expert while drafting the expert report.

Report Structure

To conclude, it is advisable for all experts to understand not only their subject matter in the dispute but to also make time to understand all parties within the process to ensure they produce the best report possible in the circumstances, as well as providing a coherent and useful testimony.