"You can't always go by an expert opinion. A turkey, if you ask a turkey, should be stuffed with grasshoppers, grit and worms." - Anonymous
L to R: Dr. Franco Mastrandrea and Simon Longley of HKA
The CIArb SA Young Members Group hosted its first discussion, debate and enlightenment evening (wine and beer appropriately involved) on Wednesday, 20 September 2017, duly supported by HKA. The event focused on how, when, and where to involve experts in resolving disputes.
Although opinions may differ (excuse the pun), the most thought-provoking portion of the debate was on the neutrality and independence of the expert providing the opinion.
People are prone to subjective factors which might cause them to sway their opinion one way or the other – money, personal ties, loyalties. Sometimes an expert becomes so entrenched in a dispute that the expert may begin to feel like the advocate of one of the parties. This should be avoided at all costs, as it could bring the expert's independence into question.
As a party instructing (and paying) the expert, you may feel as though the expert's duty is to you or your client, right? Wrong. The expert is meant to be the "honest guide, philosopher and friend" of the tribunal. Experts have (globally) been heavily criticised for not presenting their own opinion in instances where they have been found to be subjective or too tied down to the instructions given to them.
The thought-provoking question which we were all left with: How can this be avoided in arbitrations? An early, neutral evaluation by an expert might be helpful, before a matter has even been referred to arbitration. This way a party's prospects of success can be evaluated before they have too much "skin in the game". Alternatively, perhaps the answer may lie with the tribunal-appointed expert.
The SA YMG thanks everyone who contributed to the success of the event, particularly HKA, and they eagerly look forward to the next one.