It is quite common for parties to construction contract to dispute over technical issues that may traditionally fall outside the scope of expertise of an arbitral tribunal with pure legal background. These technical issues typically involve subjects such as delay analysis of schedule overrun, financial evaluation of quantum of claims, root cause of structural engineering failure etc. Therefore party appointed expert witness plays an important role in producing an expert report to assist arbitral tribunal in better understanding these technical issues. In order to promote procedural efficiency, tribunal may from time to time require experts from both claimant and respondent to produce a joint statement, setting out their points of agreement and disagreement. This allow the tribunal to focus on key technical points in dispute by filtering through what is often a messy and complex web of disagreements. This article examines some of the tips and traps associated with experts’ joint statements that may be useful to construction practitioners involved in arbitration. 

Although experts’ joint statement may expedite the identification of core issues in dispute, there are certain procedural pitfall if approached recklessly. Firstly whilst party appointed experts are engaged and paid by the respective parties in dispute, they are expected to be independent, non-partisan and free from any conflict of interest. The expert’s neutrality can have a significant impact on the credibility of his report including the joint statement. Since a party appointed expert is essentially a co-author of the joint statement, any input or comments from legal representative/ counsel of the party responsible for his appointment could potentially be revealed to the opposing party. This is because in the course of finalising draft joint statement, multiple versions of such draft could be exchanged between experts including comments contained therein. To what extent is the expert allowed to be influenced by external comments before his independence is deemed compromised? Given these communications with legal representatives are generally considered ‘privileged’, how should the tribunal deal with its disclosure even if it is highly likely to have caused impermissible interference? Further, is it possible for the tribunal to order for the omission of the ‘compromised portion’ of the joint statement or should the expert in issue be replaced entirely? Clearly, the procedural effort for the tribunal to elicit only the key contentious issue is not without peril if not done methodically. 

In order to better examine these pertinent issues, the following sections of this article review experts’ joint statements from various parties’ perspectives including the general structure and format of such joint statement. To appreciate the true purpose and value of such joint statement, it will also be useful to first understand the preceding procedural steps culminating in its agreement and subsequent issuance.

Procedural Background Leading To Issuance Of Joint Statement

After an arbitral tribunal is properly constituted, the disputing parties are typically directed to discuss and if possible, agree on a procedural timetable setting out various milestones and associated timeline. Upon conclusion of a procedural timetable, the production and issuance of experts’ joint statement will be earmarked if deemed necessary. Not all arbitrations require experts’ joint statement but anecdotally this practice has become increasingly common. Based on the list of issues in dispute between parties as defined under terms of reference of arbitration, parties are required to identify both the list of factual witnesses and expert witnesses including technical issues which the latter are required to opine on. After filing of both factual witness statements and expert reports are completed, party appointed experts of the same discipline (e.g. quantum expert, delay expert, engineering expert) will meet for discussion with the aim of setting out their points of agreements and disagreements. In an ideal world whilst the experts are expected to differ on various technical opinions, they should opine on the very same set of technical issues in dispute. However parties may not necessarily agree on the manner in which their disputes are framed since framing of issue can often be influenced by legal strategy. In the event that parties differ over the way issues in dispute are framed, this can affect how these technical issues are dealt with in joint statement. 

By way of illustration in the case of dispute relating to failure in piling  foundation works, the contractor (claimant) and the Employer (respondent) may differ in the way geotechnical engineering issues are framed e.g. (A) claimant’s technical issue: whether the contractor had complied with the prescriptive engineering specifications included in the contract? vs (B) respondent’s technical issue: what were the root cause(s) of failure of the piling works? It is clear that the ambit of technical enquiry under (B) is arguably wider than (A) where there could be investigations beyond just the contractor’s compliance with the specifications. There may be examinations of soil conditions, suitability of design, workmanship, accuracy of ground monitoring equipment etc under (B). Consequently the issues covered under respective expert report may not neatly overlap. This could result in experts of the same discipline not necessarily opining on the very same technical issue in dispute, effectively nullifying the original intention of filtering through core technical issues in dispute. 

Expert reports issued by the respective expert witnesses prior to their production of joint statement are essentially professional opinions based on facts included in the factual witness statements. Experts may refer to facts included in these witness statements produced by both parties but they neither introduce new facts nor rely on supplementary facts beyond factual evidence that had already been adduced. To put matters in perspective, witness statements provide factual bases for both the expert report as well as the subsequent joint statement. Such witness statements could only supply facts that are relevant to the scope of arbitration namely those issues included under terms of reference. In an ideal world, there should be a seamless content and scope alignment from terms of reference to the experts’ joint statement. In reality however parties from time to time do not necessarily even agree on the issues in dispute. Therefore arbitral proceedings that are not tightly managed could give rise to misalignment of issues which potentially undermines the utility of experts’ joint statement.  

Some may ask whether it is reasonable to have expert issues defined at the inception of arbitral proceedings and be included under the terms of reference. This could be a very helpful improvement to the procedural flow of arbitration provided that parties’ claims and defences are well crystallised at the outset. This may not always be the case as the party being in the position of respondent may initially offer a blanket denial to all claims as its pleaded position. Respondent may choose to only refine substances of their defence after document discovery phase of the proceedings which ends before production of witness statement. Therefore any respondent that adopts such approach to preserve its element of surprise may not be in the position to define its technical issues in dispute at the outset under terms of reference.

Structure, Format And Content For Joint Statement

Before experts meet to develop a joint statement, it will be useful to agree in advance the structure of joint statement to help guide the discussion. In general experts should arrive at an advanced agreement to a list of neutrally worded statements (or issues) for further expansion and elaboration during meeting. Depending on the technical subject matter that experts are responsible for the following are examples of neutrally worded statements for delay issue, piling issue and quantum issue:

(a) the subcontract works in issue were on the master programme’s critical path,
(b) bored pile located at XYZ achieved design load capacity, 
(c) Variation Order 4 (VO4) was valued using contract rates. 

The example statements above ought to be critical or of close proximity to the technical issues in contention in that it sheds light whether or not certain works were technically performed in a satisfactory manner. This then allow the tribunal to infer whether or not certain party was in breach of contract as alleged. These statements typically in and of itself do not directly attribute party’s liability, as such determinations are reserved for the tribunal. When experts meet for discussion, they could review these pre-agreed statements and expand further such that both experts could either simply agree/disagree with the statement and explain their reasons. Expert may also agree with the statement but qualify the limitations to such agreement e.g. “(a) the subcontract works in issue were only on the master programme’s critical path pursuant to baseline programme prior to revision 1 that took effect on 1 January 2026”. The experts could expand on the list of statements further depending on the progress and nature of their discussion. The final version of joint statement should consists of two tables where one is for statements for agreed issues and the other for disagreed issues. There should be three columns in each table i.e. (i) description of statement/ issue, (ii) claimant’s expert response, (iii) respondent’s expert response. 

Experts that do not have an advance agreement to such structure of discussion could end up taking a longer time to arrive at a mutually agreeable joint statement since it may end up being a session of counter productive criticisms of each other’s report. The essence of joint statement is to illuminate differences in investigation methodology or assessment approach without being litigious over the merit or superiority of different approaches. After all experts are expected to differ especially if they have varying forensic professional background. In other words no technical differences are going to be ‘settled’ as part of joint statement. However if the experts are dealing with quantum issue and assuming contesting parties dispute over valuation of variations, quantum experts should at least agree on the quantities of works based on their respective measurements, if instructed to do so. After all, measurement of quantities of works ought to be objective from an arithmetical standpoint. If experts differ, they should highlight basis of difference such as they could refer to different versions of construction drawings for instructed variations. Joint statement for quantum issues in theory should highlight any discrepancies in quantities of works as well as reasons behind those differences. 

Should the joint statement be concluded and signed by both experts by the end of their face to face meeting or should it be drafted and circulated electronically for concurrence via email post meeting? Experts should always strive to conclude and have an unequivocal concurrence to their joint statements by the end of their face to face meeting. If experts disagree over the wordings or content in any aspects of their joint statement, the prospect of any post meeting agreement diminishes considerably with the passage of time particularly with any subsequent electronic communications between experts. However there may be tacit agreement between the expert and legal representative for review of the draft joint statement prior to finalisation. This arrangement whilst may be well intentioned can be perilous procedurally due to perception of interference which will be elaborated in the next section of this article. 

Joint Statement From Expert’s Perspective

As alluded to earlier, the expert’s primary role is to provide independent assistance to the tribunal although in reality one may find that it is rather common for his report to be generally advantageous to the party responsible for his engagement. Therefore it is imperative that the expert maintain his actual independence to ensure that his expert opinion is credible notwithstanding any appearance of bias. Where the legal representative provides input or comment on any draft joint statement prior to finalisation, the extent to which it compromises the expert’s independence can often be debatable. This is because it is an issue that is largely dependent on the nature of any accepted comments or input. On one hand, there is genuine concern from the legal representative that the substance of joint statement may stray beyond the scope of arbitration, particularly on matters where parties are contesting whether the tribunal has any jurisdiction over. Therefore in so far as the comments from legal representatives do not actually sway the expert’s original technical opinion, there is a strong case of no compromise in the expert’s independence. On the other hand, it can sometimes be challenging to establish a proper delineation between swaying an expert’s opinion and maintaining compliance with arbitral procedure. Occasionally the legal representatives may take issue over disclosure of certain documents that are either disclosed belatedly and/or alleged to be irrelevant to the issues in dispute. In other words, the legal representative is of the view that any reliance on those documents could run afoul of the arbitral procedures. If the expert reverses his reliance on some of these contentious documents which then impacts the outcome of his assessment, it is arguable whether such comments amounts to impermissible interference. Additionally, legal representatives are naturally reluctant to waive any confidentiality of privileged communications with the expert which could muddy the water further by creating an image of being evasive. This may cause adverse inferences to be drawn by the tribunal. Therefore, it is always advisable to finalise the joint statement by the end of the experts’ meeting to avoid any perception of interference.

As alluded to earlier using an example of geotechnical engineering issue, parties in dispute over failure in piling works may not have an identically framed technical issue. How should experts from the same discipline navigate such joint statement when presented with different lines of enquiry? Using the same example above where (claimant’s issue A) addresses the question of whether the contractor was compliant with the prescriptive specification and (respondent’s issue B) addresses the root cause(s) of failure in piling works, the experts could find themselves in the following conundrum. Beyond the confines of whether the claimant was compliant with the prescriptive specification, the claimant’s expert would not be in the position to provide an informed technical assessment. Therefore the claimant’s expert is hamstrung by its inability to refute or challenge the validity of other theories on the cause of piling works failure that may be advanced by the respondent’s expert. However from the legal representative’s perspective (particularly when representing a claimant), there will be a natural inclination to expedite the proceedings with more narrowly defined issue based on evidence available. Therefore it is not at all surprising to find that the legal representative may not share the concerns of an expert in respect of joint statement. This will be elaborated further in the next section of this article.  

Joint Statement From Legal Representative’s Perspective

The legal representative’s role in expert’s joint statement has traditionally been limited to ensuring that experts do not deal with issues beyond the scope of arbitration. The objective is that any consequential determination by the tribunal based on such joint statement does not run afoul of parties’ agreement in respect of the arbitration. There are two major points of concern in this regard. Firstly, this to make certain that the arbitral award is enforceable since arbitral procedure that is not in accordance with the agreement of the parties may result in the award being set aside. This will be elaborated further in the next section of this article dealing with joint statement from a tribunal’s perspective. Secondly, a party’s ability to successfully set aside an award could be compromised if it is deemed to have accepted any reliance on documentation that it had originally contested. In this regard during the production of joint statement, either expert’s dependence on the said contentious documentation as the factual basis of their technical points of agreement could be problematic. The following hypothetical example may assist to illustrate the latter point of concern by using the previously mentioned geotechnical engineering issue.

The claimant contends that it had complied with a discrete set of prescriptive engineering specification and adduced expert evidence pursuant to claimant’s issue A. The respondent argues that there were supplementary specifications agreed by the parties that were included in the contract as part of an eleventh hour negotiation, of which the claimant denied. Let us further assume that certain points of agreement was arrived due to the claimant’s expert being led to refer and rely on those contested supplementary specifications during the production of joint statement. In an ideal world, the claimant’s position should not be prejudiced with a timely and open clarification made by its legal representative to the tribunal. After all an expert witness should be independent from the parties in dispute. However this may not be immediately clear particularly when the technical analysis is complex and there may not be a requirement in the joint statement for every points of agreement to be accompanied by a list of relevant factual reference documents. Additionally, expert witnesses are rightly or wrongly commonly sequestered from other arbitral matters that are not considered ‘technical’ such as what constitute part of contract document. As technical experts are expected to be conversant with only technical issues, they may not be sensitive as to how their technical input may be woven into an intricate web of arbitral procedures. As with most pursuit of scientific enquiries, there may not be a clear boundary established to restrict investigation. Therefore legal representatives can be stuck between a rock and hard place as regards the extent to which they should ‘chaperone’ the process of development of joint statement.

Joint Statement From Tribunal’s Perspective

As mentioned in the preceding section of this article there are adverse consequences on the enforceability of an award if its procedure is not in accordance with the parties’ agreement. Can the tribunal make findings that are contrary to points of agreement between experts included in joint statement? Would the tribunal be deemed to have exceeded its terms of reference if it makes findings that are contrary to those points of agreement? Some may argue that since the experts’ are independent from parties in dispute and are to assist the tribunal exclusively on technical matters, points of agreement in joint statement should not represent positions taken by the contesting parties. Therefore the tribunal is not constrained as such and is free to make findings as it deems fit. On the other hand, others may argue otherwise due to rules of natural justice. The following hypothetical example of delay issue may illustrate the latter concern.

One of the points of agreement between the contractor’s expert and the Employer’s expert included in the joint statement is that ‘contemporaneous programme revision 3’ was the latest schedule available that best reflects the state of timeline around the end of the project in issue. Although both experts arrive at different conclusion as regards extension of time due to different delay analysis methodology, they simultaneously relied on the very same ‘contemporaneous programme revision 3’. The legal representatives from both parties did to make any special clarification or qualification as regards this point of agreement. The tribunal subsequently granted extension of time and associated loss and expense in favour of the contractor. However, the tribunal relied on ‘contemporaneous programme revision 3’ to determine the timing when the contractor demobilised its resources from site and awarded the contractor’s entitlement to prolongation costs accordingly. In the Employer’s application to court for an order to set aside the arbitral award, it argued that the tribunal erred by making a finding of fact from the experts’ points of agreement when the joint statement in issue was exclusively produced for purposes of technical opinions. The Employer was therefore ‘surprised’ by such finding and was consequently not provided with reasonable opportunity to address the tribunal on this matter. Therefore it was alleged that the Employer’s right was prejudiced due to breach of rules of natural justice. 

Whilst the above example is hypothetical, it serves as a cautionary tale that the tribunal ought to be judicious on its reliance on joint statement even on matters that appear innocuous e.g. points of agreement. During cross examinations, the focal points of both parties’ legal representatives are usually on the points of disagreements since it is not advisable to leave the opposing expert’s opinion unchallenged. Therefore, the points of agreement in joint statements may not get the necessary focus that it perhaps deserved.

Conclusion

Joint statement from experts are perhaps some of the more useful tools in arbitral procedures since it undoubtedly help to distill the core technical issues in dispute and serve to streamline a more precise scope of contention. However as with any tool, the ability to utilise it based on its intended purpose demands that the user is equipped with the necessary skills and competence.




Koon Tak Hong Consulting Private Limited