‘II. Appointment of an Independent Expert

29. … Claimants’ counsel … submitted that the Tribunal should indeed appoint an Independent Expert for the purpose of evaluating the [liquidated damages] and slurry pumps counterclaims. However, Claimants do not wish that such Expert should also be mandated to review the suspension claims on which this Tribunal has already been briefed.

30. Respondents’ [counsel] stated that her clients do not themselves propose that this Tribunal should appoint an Independent Expert, but would not be against such an appointment either. However, if an Independent Expert is mandated, then such Expert should – in Respondents’ view – also be mandated to review the suspension claims.

31. It is of course clear that the Parties would in no way be prevented to use their own Experts, even if the Tribunal decided to mandate an Independent Expert.

32. At this juncture, it became necessary for the Tribunal to consider, deliberate and rule on the issue of whether or not an Independent Expert should be mandated.

Ill. The decision of the Arbitral Tribunal regarding the appointment of an Independent Expert

33. The Arbitrators basically have to make two decisions:

• First, whether a Tribunal-Appointed Expert should be mandated, and

• Second, whether the mandate of such Expert should basically be confined to the [liquidated damages] and slurry pumps counterclaims, or whether the mandate should be broadened to include issues relating to the suspension period.

34. Claimants have given to understand that an appreciation of the [liquidated damages] counterclaim is a complex matter, and even though the Arbitrators do not as yet have fully detailed Submissions thereon, they tend to agree that the proper assessment and the adjudication will indeed be complex. Hence, the Arbitrators would certainly be helped by expert input.

35. On the other hand, the Arbitrators must be mindful of the impact on the arbitral procedure: the proper mandating of an Independent Expert, and the proper administration of such a mission is a rather complex matter and requires a significant number of additional steps in the present procedure.

36. Reflecting on the pros and cons, the Arbitrators, however, have reached the decision that indeed it is justified, and warranted by the nature of the present dispute, that an Independent Expert be appointed.

37. The Independent Expert shall either be a particular natural person, or a firm (such as an engineering firm, which in turn will then have to designate a particular specifically experienced/qualified individual, or possibly a team of two persons, to serve as the Independent Expert(s)).1

38. The more difficult question is whether the mandate of the Independent Expert should be limited to the counterclaims, or whether the mandate should also include an examination in respect of the suspension claims, or of discrete aspects which are controversial in respect of the suspension claims and on which an input from the Independent Expert might be of assistance to the Tribunal.

39. On this latter issue, the Arbitrators have reached the conclusion that, indeed, it would be of significant help to them if the Independent Expert would also review some particular issues disputed between the Parties in respect of the suspension claims. The reason for this decision basically is that the Arbitrators, during the past 10 weeks, have spent considerable time on reviewing the suspension claims and, at this point, would find it very helpful if they, in respect of certain matters of the suspension claims (such matters to be discussed at the occasion of settling of the Terms of Reference for the Independent Expert(s)), would be assisted by an independent expert opinion. The Arbitrators are, however, aware that this will broaden the task of the Independent Expert, and is likely to require additional time.

40. To sum up: In the Arbitrators’ evaluation on the scope of the mandate (the assistance on the one hand and the time and expense on the other hand), they reached the decision that the mandate of the Independent Expert should include a review in respect of certain aspects of Claimants’ suspension claims. It will, however, remain a point for further discussion how to define and encompass [sic] such mandate to discrete aspects of the suspension claims.

41. The above now raises a long series of points which require further discussion between the Parties and the Arbitral Tribunal. In the subsequent Chapter, the Tribunal will address some of these points, all of which may require further thoughts by the Parties and discussions either at telephone conferences or upcoming Hearings.

IV. Lining-up the Experts’ procedure

i) Procedure for nominating the Independent Expert

42. The Arbitral Tribunal expects the counsel to both sides to first discuss among themselves (i) the basic profile and (ii) potential candidates to serve as Independent Experts.

43. Basic profile: Counsel should discuss, and perhaps condense in bullet-points, the required scientific and technical expertise and further capabilities of the candidates. In this respect, counsel should also discuss whether, in addition to particular technical expertise, a commercial /economic expertise would be a desired qualification, for instance for properly assessing the monetary values which may be in dispute. In this respect, the Parties might consider whether a team of experts of two persons (for instance from within one particular engineering firm) might be a good solution, in the sense that one person would have specific technical and engineering capabilities, and his colleague would have special knowledge and experience on the economics.

44. Discussing candidates: Whether an individual person could “fit the bill” is really highly questionable. It might seem best for counsel to both sides to reflect on a highly reputable and experienced engineering firm which, under its roof, might have a specialist for the technical/engineering issues and a specialist on the economic side. In any event, the Independent Expert should be seen, and accepted, by both sides, as being truly neutral. It will mean that such Independent Expert will not be seen as having a closer relationship with either one of the Parties. This may not be very easy to find, given the broad networks of the claimant companies.

45. The Arbitral Tribunal expects counsel to inform the Tribunal [within two weeks] whether they have been able to identify a suitable candidate (or candidate firm) to serve as the Independent Expert (or to be nominated as the expert firm which will then have to identify one or two responsible individuals to serve for the purpose).

ii) Default Appointment

46. Should the Parties not be able to come up with a joint proposal, the Arbitral Tribunal is likely to solicit proposals from the ICC Centre for Expertise. For such purpose, however, the Tribunal will have to make a more detailed request in formulating the scope of the tasks of the Independent Expert, and the required qualifications. For the profile to be submitted, the Tribunal will invite the Parties to assist in formulating the request to the Centre. In such request, the Tribunal would then invite the ICC Centre to propose candidates. The Centre’s service is not free of charge;2 the Chairman is likely to ask the Parties for paying [sic] the required deposits on a 50/50 basis.

47. The resulting proposal of the ICC Centre of a suitable Independent Expert would then be submitted to the Parties for review and comments. If it is a firm, such as an engineering firm, it will be important to identify the individual persons or “protagonists” to undertake the mission, and of course detailed professional CVs will be required to evidence professional expertise in the technical field as well as in the economic field.

48. The Tribunal hopes that it will be possible to have a selection of the Independent Expert made prior to the [holiday] period. However, this might seem to be overly optimistic.

iii) Contracting: Experts’ Terms of Reference

49. Once the Independent Expert is identified, the next step will be to define more precisely the mandate to be given to the Independent Expert (or Experts’ Team).

50. This, again, is an exacting task and involves a significant number of issues.

51. In all probability, it will be necessary to hold a one- or two-day Experts’ Terms of Reference Meeting for devising the road map to be followed by the Independent Expert. The points to be agreed, obviously, consist of the files to be constituted for review by the Experts, the more precise scope of review of the Experts, and a series of questions how to carry out their mission, including the basic timetable, the modalities of receiving further information from the Parties, or from one of them, further fact-finding requirements, site visits with or without participation of the other Parties, with or without the Tribunal etc. Experience shows that such issues can hardly be solved by written communications, but require an oral interaction between the Parties, their representatives, their counsel, the Arbitrators and the Expert(s); hence a further Meeting will be required.3

52. As part of the Terms of Reference, a calendar for the several steps of the Experts’ mission should be fixed, including the time when the Experts should come up with the written Experts’ Opinion.

53. The Experts’ Opinion, when prepared, will normally be submitted to the Parties for comments, and of course the Independent Experts’ Opinion may be commented on by each side’s own technical and commercial experts. Hence, Parties will be given time limits to comment on the findings of the Independent Expert.

54. Thereafter, i.e. after Submissions dealing with the Parties’ comments to the Independent Experts’ Opinion, the Tribunal will most likely schedule a Hearing for which one entire week should be reserved.

55. The purpose of the Hearing will be for the Experts to be examined orally on their findings, quite in the sense of examination and cross-examination.4

56. It is not possible, at this time, to determine whether such further oral examination will be a short exercise, or whether it will be an exercise to be carried out during one or two or more days. Thereafter, time will be needed to reflect on where we stand, including oral post-hearing arguments on the “lessons to be learned” from the examination of the Expert(s). Hence, one week is to be reserved.

57. Based on such Hearing the Arbitral Tribunal will then form its own view in respect of what it should learn and conclude from the Independent Experts’ Opinion (after testing at the occasion of the Hearing).

58. In any event, the Tribunal will be free to appreciate the probative value, weight and significance to be given to the Independent Experts’ Opinion, quite in the same way as the Tribunal has the authority and task to assess and adjudicate the weight and significance on any other evidentiary matters.

- It is important to clarify that the Experts’ Opinion as such is not binding upon the Arbitrators, but is subject to the Arbitrators’ appreciation, as expressed in this paragraph.

- Obviously, the Tribunal’s task will be to put the technical and economical findings (as may be submitted to them by the Independent Expert) into the contractual and legal perspective.

- Hence, the determinations to be made by the Independent Expert(s) is [sic] only one stone in the overall “mosaic” to be considered and appreciated by the Tribunal.

59. At the occasion of the Experts’ Terms of Reference Meeting, the Tribunal and the Parties will not only have to consider the time budget and all other elements, but also the financial budget for the expertise procedure. The Independent Expert will be asked to make a quote, for submission to the Parties, and the funding and administration of that budget will also be a matter for discussion.

60. It is unlikely that the Expert(s) can or even should start work prior to having settled the budget.

V. Summary and conclusion

61. The Tribunal has decided that an Independent Expert (or Team of Experts) should be mandated to assist the Tribunal in its tasks. The Expert or the Team of Experts should be capable and knowledgeable to examine (i) the technical issues as well as (ii) the economic issues in respect of the rehabilitation project.

62. The Parties are expected to inform the Tribunal regarding any agreement they may have been able to reach in respect of a suitable “candidate” to serve as the Independent Expert [within two weeks]. The Tribunal may extend the time limit upon request, as there would be a strong preference that the Parties themselves reach an agreement on the Independent Expert (rather than seeking proposals from the ICC Centre of Expertise).

63. Under Chapter I of this Order, certain milestone dates were fixed for upcoming Submissions to be filed by Respondents and by Claimants.

I

64. These milestone dates are to be kept, and the Tribunal expects the Submissions to be filed in due course …

65. As regards the date … for a telephone conference or a Hearing, this should likewise be kept and reserved, since there might be developments requiring such further consultations with the Parties, either in a Meeting or at a telephone conference. Possibly, a first Meeting might be organized on that day with the Independent Expert.

66. The Hearing Dates … should likewise remain blocked in everybody’s calendars. In fact, based on the discussion in Chapters II-IV, those Hearing Dates could be used for a one- or two-day Experts’ Terms of Reference Meeting, or for a Kick-Off Meeting with the Independent Expert5 (in case the Terms of Reference can be settled beforehand).’

1
Whatever that individual person, or representative, or team will be, the Tribunal hereinafter will refer to such person or team as the “lndependent Expert”.

2
Editor’s note: This service is now provided free of charge, pursuant to Article 3 of Appendix II of the 2015 ICC Rules for the Proposal of Experts and Neutrals.

3
In recent cases, the Chairman used to carve out two days for such purpose, which in fact were fully needed for briefing and contracting, with some 16 or more hours of structured discussions for properly lining up the process.

4
The examinations of the Independent Expert(s) can be done by counsel of the Parties, and/or – under control of counsel and of the Tribunal – by the Parties’ own experts (who may be better placed to discuss truly technical or other issues than counsel with no technical or other engineering degrees).

5
In the Chairman’s experience, after having settled the Experts’ Terms of Reference, and after a time sufficient for the Expert to familiarize with the incumbent tasks and mission on the basis of the (probably) voluminous) files to be provided to him by the Parties, it will not only be useful but indeed necessary to hold such a Kick-Off Meeting for discussing and settling the further “road map” along which the Expert will be expected to proceed. In the Chairman’s experience, such Kick-Off Meeting may require two full working days.