Experts' joint statements in arbitration: A closer look at the SCL Singapore’s new protocol

The Protocol emphasises that experts should be able to communicate freely to comprehensively discuss their opinions and points of agreement and/or disagreement. To enable open and constructive inter-expert dialogue, the Guidance of Core Principle 2 provides that: (i) experts should communicate directly and without the presence and/or intervention of parties or counsel; and (ii) such discussions should not be "limited to answering only those questions which have been posed by counsel". While this reflects the established practice in common law jurisdictions, such as England and Australia, regarding the drafting of expert reports (eg, in English litigation, Paragraph 9.2 of Practice Direction 35 emphasises that the purpose of experts' discussions is not "to settle cases but to agree and narrow issues", and at Paragraph 9.4 that "[u]nless ordered by the court, or agreed by all parties, and the experts, neither the parties nor their legal representatives may attend experts discussions"), the position can differ from the approach of other jurisdictions. For instance, in US litigation, parties' lawyers may have some involvement in the drafting of expert reports as long as the substance of the opinions is from the expert. By adopting the Protocol, parties can avoid uncertainties resulting from cross-cultural differences in the role of parties and counsel in expert conferences.

Another important feature of the Protocol is that it provides that expert conferences shall, by default, be conducted on a "without prejudice" basis. In practice, this point is often not expressly addressed ahead of expert conferences and can lead to disputes after the submission of a joint statement over whether its underlying discussions were privileged. 

Notably, many civil law jurisdictions (such as the UAE and Thailand) do not provide for without prejudice privilege but allow parties to agree that expert discussions are to be kept confidential and are inadmissible in the arbitration. By consensually adopting the Protocol, Core Principle 2 helps to provide clarity in civil law governed arbitrations by providing that expert discussions and any materials communicated therein "must not be used in the proceedings unless the Parties otherwise agree".  This avoids uncertainty in cross-border arbitration over the extent to which expert discussions are protected.

Expectations as to the extent of counsel involvement in negotiating and drafting experts' joint statements can differ significantly worldwide, with some jurisdictions permitting counsel to actively intervene in their expert's drafting process. As a result, this divergence in practices can give rise to disputes during the preparation of joint statements and concerns about the independence of a party's expert. 

Core Principle 3 aims to harmonise expectations in international arbitration, and adopts the minimal intervention approach under certain common law systems, according to which counsel must not be involved in the process of negotiating or drafting experts' joint statements. Instead, counsel may only invite experts to consider amending any draft joint statements "in exceptional circumstances where there are serious concerns that the Tribunal may misunderstand or be misled by the terms of that joint statement". Further, any such concerns should be raised with all experts giving the joint statement, rather than just a party's own expert. This reflects, for example, the English courts' position that any broader involvement by counsel is a "serious transgression" that can impair an expert's independence (see, for example, the court's commentary on the expert witnesses in BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC)).

Given that this is an area of notable difference across jurisdictions, it remains to be seen whether the international arbitration community will be receptive towards the approach adopted by Core Principle 3. 

The Protocol identifies the need, and provides a platform, for proactive management by the tribunal of experts' joint statements and expert conferences. Core Principle 4 suggests a helpful list of procedural matters to be addressed by the tribunal in managing expert conferences, including pre-joint statement meetings between experts and the tribunal (without counsel) to explore the experts' preliminary views on what relevant information or documents are needed from the parties and the tribunal's expectations on timelines of joint statements, form and structure of the statement. While not expressly raised by the Protocol, tribunals should also consider using their case management powers under Core Principle 4 to ensure that experts are addressing the same (rather than different) issues or cause them to do so, eg, by ordering the submission of a further expert joint statement where they have initially failed to address each other's arguments. 

The Protocol allows the tribunal to structure the process of producing individual expert reports and experts' joint statement to best suit the dispute at hand. For example, Core Principle 5 encourages arbitrators to consider directions as to the timing, sequence and number of expert conferences to be conducted in light of the overall arbitration – for example, whether the arbitration is being conducted according to a pleadings or memorials style. 

The Protocol encourages the tribunal to consider continued engagement with experts after the evidentiary hearing. A novel provision, Core Principle 7 allows the tribunal to direct experts to confer further after the hearing and to provide supplementary statements, either jointly or separately, on certain issues. Such direction could be particularly helpful where, as is sometimes the case in construction arbitrations, the tribunal has determined that a party's liability (for example, for an extension of time) falls in a midpoint between the parties' respective positions but the parties' quantum experts have not quantified losses in this specific scenario (for example, for prolongation costs). In recent years, it has become more common for arbitrators to direct experts to provide supplementary post-hearing statements in such situations. Core Principle 7 appears to reflect this trend by encouraging the tribunal to proactively consider such case management techniques to determine the dispute in a more effective manner.