La visión del Tribunal Arbitral respecto a la prueba pericial y cómo presentar una prueba pericial efectiva
El pasado 13 de abril de 2018, la AFA co-organizó un nuevo desayuno-coloquio junto con KPMG forensic, del que a continuación pueden encontrar unas notas:
Mr. Pierre Raoul-Duval, lawyer and international arbitrator at Cuatrecasas Law Firm.
- Cases have to be adapted at the particular circumstances, because speed matters. Expert evidence has clearly an impact on the time.
- Nowadays, the number of cases solved through arbitration have increased, but the number of experts has not followed the same trend. Everybody has a problem to find experts.
- Credibility of expert witnesses is of essence. It is important as expert evidence helps arbitrators to take the right decision. Arbitrators expect the view of expert witnesses about what it is right.
- Arbitrators are not experts on everything about the case. Thus, experts make sure the message is conveyed.
- The appointment of legal experts is needed. The appointment of law professors may be required in other situations. For instance, when the law applicable is a foreign to arbitrators, legal experts may be required and, even, a cross-examination. Or, another case would be when doubts arose about how the applicable law applies to a specific case. For example, in English law, there are no principles. There are only rules and case law. As principles do not exist, it could be very helpful to have a law professor establishing that, even if there have been modifications on the rules, there are common results.Even if there are no principles, there are common results.
- When we are dealing with technical issues, cross-examination does not necessary help.
- In some cases, the best expert witnesses are the ones that work for one of the parties in the project of the case. At this point, a question about credibility arises. In these cases, it is necessary to convince the arbitral tribunal that they are the best ones to defend the interests of one of the parties.
- As there are a lot of documents to deal with, it is better to have a summary for each document, not only an executive summary at the beginning of each memorials.
- In order to strengthen the credibility of the expert witnesses, the golden rule is: “the modest, the best.” If they are too sided, the arbitrators are very attentive. Another one is: “Do not spend time with something irrelevant. There is no value and it annoys the arbitrators.”
- Regarding the cases dealing with delays in the construction sector, parties do not spend time on the legal analysis of the clauses. Counsels fail to see the relevance of the legal analysis of the clauses. In addition, as there are masses of information, parties need teams very well trained to analyze all the relevant information.
- Regarding the valuations made by experts, it is of importance the determination of quantum.
Mr. Alberto Rábano, director of KMPG forensic in Madrid.
- Expert witnesses are needed because of the complexity of disputes. In the vast majority of disputes, parties seek damages. Thus, damages are crucial. A misunderstanding about damages results in not having the right tools in order to render a good award because the principle of full reparation is, in those cases, not respected.
- Expert witnesses have to produce a document easy to follow, without losing the technical rigor. A report should bring bright to the arbitral tribunal. It is important that arbitral tribunal can fulfill their duties.
- When the expert witness is acting on behalf of the respondent, its report should be objective highlighting the inconsistencies and the lack of supportive documents. Mr. Rábano said that it is not enough to attack, expert witnesses should also propose an alternative quantification.
- During the hearings, expert witnesses should proof their experience and, above all, bring light to the tribunal. Some tips? Be clear. Follow a didactical and credible approach. Be prepared for being cross-examined.
Q&A, Mr. Pierre Raoul-Duval.
- Arbitrators feel when the expert witnesses are lying. In those cases, as an arbitrator, you reflect that on the award by not buying the justification and arguments offered by the expert witness. Arbitrators have the power to interpret the evidence.
- Moreover, he says that experts have a duty to not accept everything the client asks. For instance, if the quantum is lower, expert witnesses should not try to justify a higher quantum.
- It is useful to have a co-arbitratos that knows about the technical aspects involved in the case being judges, because he or she does better in questioning.
- Regarding a question formulated by one of the assistants, whether it is better to have two reports, a technical one and another that translates the first one into damages, or only one report gathering both reports. He answered it is better to have only one report, as the story is more coherent. Mr. Rábano answered that, in some cases, it is better to have two reports in order to avoid confusion. Every case is different.
- Finally, one question that was left opened is until what point an arbitrator is improving the case for the other party with good questioning as an expert arbitrator.
By Mohamed Bouzagou Ouali