Arbitration practitioners welcome SCL Singapore protocol on joint expert statements

The protocol (23-page // 234KB PDF) aims to foster collaboration between experts by introducing a framework that not only helps them clarify and agree on key issues but also resolve their differences efficiently, thereby supporting the resolution process in arbitration disputes.

The protocol is designed for experts, tribunals, and legal counsel in both domestic and Singapore-seated international arbitration disputes and can be incorporated in whole or in part by the arbitral tribunal with the parties’ consent. It is the first in a series of user-friendly protocols aimed at enhancing education and research in construction law, according to the SCL.

Frédéric Gillion, an expert in international arbitration at Pinsent Masons, said: “Expert evidence plays a determining role in the resolution of construction disputes. The protocol aims at assisting and promoting collaboration between experts. It gives them a framework where they can discuss and find out whether they can agree on some of the issues, helping the resolution process instead of delaying it”.

The protocol introduces seven core principles for arbitration procedure, from the declaration of competence and independence of the experts to any post-hearing issues, with each principle having a guidance note. It also contains a draft joint statement with a schedule table listing issues that the experts have reached agreement or disagreement over, alongside their respective positions when disagreements do occur.

Gillion said: “The protocol is simple, concise and to the point, meaning users can easily follow and adopt into their procedures and policies.”

“It gives welcoming clarification and structure on certain issues which were generally followed in practice. Some of these, such as the expert’s declaration of competence and independence, gain from being formalised,” he said.

“The protocol also contains useful guidance on the methodology to follow during the exchange of expert reports and the scheduling of the witness conferencing to produce the joint statement, depending on the complexity of the case and the chosen style.”

Development of the protocol started in 2019, following discussion surrounding what role lawyers should play in expert joint statements and well-known experts and judges highlighting the value of joint expert reports to avoid testimony being driven by advocacy, which can create additional costs instead of helping resolve cases.

Johanne Brocas, an expert in international arbitration at Pinsent Masons, said: “The schedule is a helpful document to structure the outcome of the joint statement and for the arbitrator to quickly see which issues have been agreed on, which are still in dispute and why.”

“This guide will help homogenise the procedures and level the playing fields for arbitrators who may not be construction specialists, promoting predictability and efficiency of the arbitration procedure,” she said.

“As noted by the SCL, other institutions such as the CIARb are looking into issuing a similar protocol responding to their users’ needs. It is an area where we may see more guidelines being issued.”