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Rethinking the Structure of

Construction Arbitration: A Dispute
Systems Design Approach to the
Position of Experts

Juan Pablo Labbé Arocca*

ABSTRACT

Technical issues, such as factual questions of engineering that re-

quire specific scientific knowledge to be answered (e.g., analyzing
whether a bridge collapsed because of the chemical composition of the
steel used to build it), play a critical role in the development and out-
come of construction arbitration proceedings. Almost by inertia, such
issues have consistently been treated as a matter of expert evidence. In
the present work, I inquire into whether this is the correct approach
for all technical issues, and I argue that certain technical issues
should be treated as matters of adjudication due to their level of com-
plexity and logical proximity to the legal issues of the case. There is an
essential asynchrony between the nature of highly complex, outcome-
proximate technical issues and the procedural structure under which
they are assessed and resolved. This reality significantly reduces the
extent to which the interests of the tribunal, the parties, their legal
counsel, and the experts themselves are met. To address this tension, I
draw from Dispute Systems Design methodology in order to evaluate
the existing mechanisms for producing expert evidence. Using that
analysis, I outline a new design that coheres with the nature of these
technical issues and properly addresses the interests of the relevant
stakeholders.

* LL.M. (19’), Harvard Law School; Senior Associate, Bofill Mir & Alvarez
Jana; Procedural Law Professor, Universidad del Desarrollo. The author thanks Pro-
fessor Rachel Viscomi, Sannoy Das, Jane Bestor, Elina Mereminskaya and Juan
Eduardo Figueroa, for their guidance, comments and encouragement on this project,
as well as the excellent team of editors at the Harvard Negotiation Law Review. This
article reflects the views of the author alone and does not reflect the view of any or-
ganization or academic institutions with which the author is associated or affiliated.
The author can be reached at jlabbearocca@llm19.law.harvard.edu.

43
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44 Harvard Negotiation Law Review [Vol. 27:43

CONTENTS
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 R
II. Factors that make assessment of technical issues
no longer evidentiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 R
A. The level of complexity of the technical issue . . . . . 49 R
B. The logical space between the technical and the
legal conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 R
III. A Dispute Systems Design approach to the
assessment of technical issues in construction
disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 R
A. Conflict assessment: Identifying the issue, the
stakeholders, and their underlying interests . . . . . . 55 R
B. Assessment of available procedures: Main
challenges that arise around expert evidence
and existing mechanisms to address these
challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 R
1. Cost-effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 R
2. Satisfaction with the outcome . . . . . . . . . . . . . . . . . 63 R
a. Independence and impartiality of expert
witnesses and party control over expert
evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 R
b. Submission of conflicting expert
evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 R
i. Civil law approach: Tribunal-
appointed expert . . . . . . . . . . . . . . . . . . . . . . 68 R
ii. Common law approach: Witness
conferencing . . . . . . . . . . . . . . . . . . . . . . . . . . 70 R
3. Conclusion: Current solutions are
intrinsically inadequate for critical and
complex technical issues . . . . . . . . . . . . . . . . . . . . . . 72 R
IV. Characteristics of a cost-effective and satisfactory
assessment of technical issues in construction
disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 R
A. WTO panels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 R
B. Dispute Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 R
C. Sachs Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 R
D. Expert arbitrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 R
V. Design for improvement: Fitting the forum to the
fuss in complex construction disputes . . . . . . . . . . . . . . . . . 82 R
A. General description of the model . . . . . . . . . . . . . . . . . . 82 R
B. Technical expert as part of the arbitration
tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 R
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Fall 2021] Rethinking the Structure of Construction Arbitration 45

C. Appointment of the technical expert . . . . . . . . . . . . . . 85 R

D. Relationship with the tribunal . . . . . . . . . . . . . . . . . . . . 86 R
E. Relationship with the parties . . . . . . . . . . . . . . . . . . . . . 86 R
F. Timing of expert member appointment and
scope of her assessment . . . . . . . . . . . . . . . . . . . . . . . . . . 88 R
G. Predicted benefits of implementing the
proposed model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 R
H. Possible challenges of the proposed model . . . . . . . . 90 R

I. INTRODUCTION
In 1901, Judge Learned Hand argued that expert witnesses con-
stituted an anomaly1 from a logical and legal perspective and pro-
posed that so-called expert evidence be transferred to an advisory
tribunal that would provide the jury with the general technical pro-
positions applicable to the case at issue.2 Despite Judge Hand’s criti-
cism,3 the institution of expert witnesses not only survived but
became ubiquitous in several legal systems and dispute resolution
mechanisms. Today, expert evidence has received special attention
by scholars, practitioners, and dispute system designers when it
comes to construction arbitration.
In this Article, I acknowledge the evolution that construction
project disputes have undergone over time, and I inquire into
whether current dispute resolution mechanisms properly address
modern issues in a satisfactory way. I show in the present Article
that when the technical issues that arise in construction disputes
reach a certain level of complexity and logical proximity to the legal

1. As early as 1860, but from the perspective of a scientist, the Scottish chemist
R. Angus Smith argued that playing the role of expert witnesses leads scientists to
become mere barristers who know science. This, as he puts it, “is far removed from
the idea of a man of science. He ought to be a student of nature, who loves whatever
nature says, in a most disinterested manner. If we allow him or encourage him to be
an advocate, we remove him from his sphere; we destroy the very ideal of his charac-
ter; we give him duties which he never was intended to perform, and we turn him
aside from the objects which first in early life led him to study in the direction of
science.” R. Angus Smith, Science in Our Courts of Law, 7 J. SOC’Y ARTS 135, 137
(1860).
2. Learned Hand, Historical and Practical Considerations Regarding Expert
Testimony, 15 HARV. L. REV. 40, 50–56 (1901).
3. A constant critique has accompanied the institution of expert witnesses from
its conception until the modern day. While such criticism has focused on several is-
sues, almost all commentators have agreed “that the partisanship displayed in court
prevented the appropriate resolution of the scientific issues presented in court, tar-
nished the public image of sciences, and thus should be neutralized one way or an-
other.” Tal Golan, The History of Scientific Expert Testimony in the English
Courtroom, 12 SCI. CONTEXT 7, 27 (1999).
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46 Harvard Negotiation Law Review [Vol. 27:43

dispute that must be resolved by an arbitral tribunal, and the tribu-

nal is not an expert in the relevant science, such issues are deprived
of their evidentiary nature.4 Consequently, a structural asynchrony
arises between the nature of the issue and the procedural mechanism
under which it is resolved.5
When this structural asynchrony arises, applying the rules of ev-
idence to the assessment of highly complex and decisive technical is-
sues becomes problematic. The nonexpert decision-maker will not
necessarily be able to perform a substantive evaluation of the experts’
conclusions or integrate the conclusions into broader legal reason-
ing—let alone properly decide in the face of conflicting expert evi-
dence. This suggests that certain issues should then be revisited,
namely, the standard of impartiality applicable to the person who
performs the technical assessment, the control that the parties and
counsel are able to exert over such technical assessment, and the
level of reliance or deference of the nonexpert decision-maker to-
wards the expert’s conclusions.
I address these issues from a Dispute Systems Design (“DSD”)
perspective. In Section II, I define the types of issues on which I focus
and explain why they should not be considered nor treated as evi-
dence. In Section III, I evaluate current mechanisms for the assess-
ment of these technical issues in light of the underlying interests of
the relevant stakeholders. Then, in Section IV, I draw from several
existing dispute resolution mechanisms to identify the features that
should be present in a design that properly deals with the assessment
of technical issues.
Finally, in Section V, I propose a model wherein the technical
assessment comes from the arbitral tribunal in the form of an expert
who is agreed upon by the parties in the same way as the arbitrators
are agreed upon and who becomes part of the decision-making body.
This model is designed to address the issues raised in Sections II–IV,
and it is based on the assumption that the assessment of technical
issues that are both highly complex and determinative of the answer
to the legal issue is not a matter of evidence, but rather of adjudica-
tion. Ultimately, the expert does not take part in the decision of the

4. The analysis contained in the present work is also applicable to other types of
disputes where technical issues can be especially complex and critical to resolve the
case, including energy, oil and gas, mining, financial, or patent disputes.
5. The purpose here is not to revive Judge Hand’s concerns regarding expert
evidence generally or in relation to all construction disputes. Rather, my objective is
to critically analyze the way in which certain technical issues are addressed in con-
struction disputes and to propose a new model based on such analysis.
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Fall 2021] Rethinking the Structure of Construction Arbitration 47

case (as a nonlegal expert arbitrator would) but rather has the sole
task of resolving the specific technical issue that justifies her pres-
ence and providing her assessment to the tribunal.

II. FACTORS THAT MAKE ASSESSMENT OF TECHNICAL ISSUES NO

LONGER EVIDENTIARY

When a technical issue is both (1) too complex for an adjudicator

to understand, and (2) amounts to a judgement on the legal issue at
dispute, its assessment is no longer merely evidentiary but instead
becomes a judgement. Evidence is “any material which would aid the
court in establishing the probability of past events into which it must
inquire.”6 As a general matter, the object of producing evidence is to
demonstrate disputed facts7 (minor premises), which are afterwards
evaluated by the decision-maker in light of the applicable legal rule
or standard (the major premise) in order to resolve a conflict. When
facts fall within the realm of a specific science or specialized form of
knowledge and require technical expertise to be understood, and
when the adjudicator does not possess such expertise, expert wit-
nesses are called upon to assess and explain those facts to the
tribunal.
Despite the established conception of an expert’s legal nature as
a “witness,”8 the expert witness can hardly be characterized as a
“witness” at all. Indeed, as opposed to lay witnesses, who testify
about the facts that they have perceived, the expert
is not limited to personal knowledge and may base her testi-
mony on information that was gathered solely for the purpose of
testifying in litigation. Under the proper circumstances, an ex-
pert witness may offer an opinion on the cause or consequences

6. RICHARD GLOVER & PETER MURPHY, MURPHY ON EVIDENCE 3 (13th ed. 2013).
7. Carlos Alberto Matheus López, Reflexiones en Torno a la Función y Objeto de
la Prueba, 14 REVISTA DE DERECHO 175, 180 (2003); José Ovalle Favela, La Teorı́a
General de la Prueba, 93–94 REVISTA DE LA FACULTAD DE DERECHO DE MÉXICO 273,
292–93 (1974).
8. Some scholars insist on
emphasizing that the expert, despite the special features of their role, is still
a type of witness. In many respects experts are treated in the same way as
witnesses: they are obliged to speak the truth (on matters of fact), appear at
the hearing to answer questions, and their evidence or credibility may be
contradicted or challenged in the proceedings. As with other witnesses, the
tribunal has the obligation to evaluate and give such weight to expert evi-
dence as it considers appropriate.
Bernardo M. Cremades & David J.A. Cairns, Expertise in International Arbitration,
10 TRANSNAT’L DISP. MGMT. 12 (2013)
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48 Harvard Negotiation Law Review [Vol. 27:43

of occurrences, interpret the actions of other persons, draw con-

clusions on the basis of circumstances, and comment on the like-
lihood of events. She may even state her beliefs about such
seemingly nonfactual issues as fault, damages, negligence,
whether the occurrence was avoidable, and the like.9
In other words, the expert witness, far from declaring the facts
that she has observed, does something much more similar to the deci-
sion-maker’s task. She is presented with some facts (minor premises),
learned retrospectively through some sort of evidence, that are evalu-
ated in light of a technical rule or standard (the major premise) that
allows her to reach a conclusion on the specific question at issue. The
similarity between this scheme and the adjudicatory function is ines-
capable. In fact, that is precisely the reason why the acclaimed evi-
dence scholars Glover and Murphy note that opinion evidence, in
general, “usurps the function of the court to form an opinion on the
facts in issue on the basis of the facts proved by the evidence placed
before it.”10
In this sense, expert testimony (which is, in essence, evidence in
the form of an opinion) is tolerated because of necessity. As opposed
to facts declared by lay witnesses, the facts interpreted by the expert
are, in general, not understood sufficiently by the tribunal to form its
own opinion to be incorporated into its reasoning. For this reason, the
nonexpert decision-maker requires the expert to present both the
facts and an informed opinion.
The fear of expert witnesses generally usurping the role of tribu-
nals has been overcome by a legal-doctrinal understanding that the
tribunal retains its ability to make a judgement on the case at issue
even if it implies departing from the expert’s conclusions. However,
this can only be true if the expert’s assessment remains evidentiary
in nature. I postulate that at least one of two circumstances must be
present for this to be the case. First, the level of complexity of the
facts to be interpreted by the expert must allow the decision-maker to
perform at least some evaluation of the content of the expert’s conclu-
sion and not be forced to rely substantially on it. Second, there must

9. STEVEN LUBET & ELIZABETH I. BOALS, EXPERT TESTIMONY 2 (3d ed. 2014).
10. GLOVER AND MURPHY, supra note 6, at 403. According to the authors, the ad-
missibility of expert evidence constitutes an exception to the general rule against
opinion evidence, which “is justified by the fact that the court would be unable, un-
aided, to draw proper inferences and form proper opinions from such specialized facts
as might be proved, and even perhaps to judge what facts have been satisfactorily
proved.” Id. at 407.
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be some logical space between the conclusion of the disputed techni-

cal issue and the legal issue. In other words, the expert opinion quali-
fies as evidence when acceptance of the expert’s opinion does not
itself resolve the legal issue in dispute, but rather, the tribunal finds
itself in need of combining the expert’s conclusion with some other
premises to reach a legal conclusion.
However, when the conclusion of the expert’s assessment (1) is
too complex for the nonexpert decision-maker to substantively evalu-
ate and (2) amounts to a judgement on the legal issue (or one of the
legal issues) of the case, it should not count as evidentiary in nature.
Such a conclusion departs from evidence’s core purpose—to provide
the judge with a minor premise (which is generally a fact) to be incor-
porated into her reasoning to resolve the dispute. When neither of the
two circumstances described above is present, the expert evidence as-
sumes part of the tribunal’s function because it is not subject to any
“assessment” by the decision-maker. In such cases, the “evidence”
does not inform a decision but effectively constitutes a decision in and
of itself.

A. The level of complexity of the technical issue

Parties present evidence to a tribunal in order to persuade a
human decision-maker about the truth of a fact that will bear on the
resolution of a legal dispute. Since parties commonly present various
forms of evidence that aim to persuade the tribunal of different and
contradictory facts, the decision-maker must be able to weigh the pro-
bative value of each piece of evidence and assess the extent to which
it educates her about the truth of the facts in question. For that to be
possible, the decision-maker must understand the facts well enough
to determine whether a piece of evidence is more or less persuasive11
as to what is intended to be proved.

11. According to Taruffo, there is a widespread idea in procedural doctrine ac-

cording to which “evidence consists of an instrument—or, more specifically, an argu-
ment—of an essentially persuasive character. This is the ‘rhetorical’ idea of evidence,
according to which its purpose is to create in the mind of the judge (who would be the
specific and privileged audience) a conviction about the way in which the facts of the
case took place.” Michele Taruffo, Ermeneutica, prova e decisione, 4 REVISTA
BRASILEIRA DE DIREITO PROCESSUAL PENAL 129, 133 (2018) (original in Italian) (“[L]a
prova consisterebbe in uno strumento -o, più propriamente, in un argomento- di carat-
tere essenzialmente persuasive. Si tratta dell’idea ‘retorica’ della prova, in base alla
quale il suo scopo consisterebbe nel creare nella mente del giudice (che sarebbe
l’uditorio specifico e privilegiato) un convincimento intorno al modo in cui si sarebbero
svolti i fatti del caso.”) (internal citiations omitted). However, Taruffo himself pro-
vides a critique to this concept of evidence. Indeed, he explains that such an under-
standing of evidence would correspond to the perspective of lawyers (whose
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50 Harvard Negotiation Law Review [Vol. 27:43

When it comes to expert evidence, however, the ability of the

nonexpert decision-maker to weigh or assess its probative value be-
comes increasingly limited as the issues grow in complexity. In other
words,
the more complicated and specialised the questions involved
and the methods adopted by the experts, the greater is the de-
pendence of the tribunal on their opinions and findings. If there
are certain subjects on which the Court cannot, for lack of spe-
cial knowledge or experience, form its own conviction, it is likely
also that it cannot properly assess the value of opinions and
other evidence covering such subjects.12
As a consequence, when complex technical issues arise in a dispute—
something particularly common in construction arbitrations—the ar-
bitrators will be pushed to rely to some extent on the substance of the
expert’s opinion.
This is not to say that tribunals will always accept the expert
evidence without analysis. The decision-maker must still decide
whether to include the expert’s conclusion in her legal reasoning pro-
cess. As Scott Brewer puts it,
[w]hen a nonexpert practical reasoner solicits the view of a theo-
retical expert in the course of making a practical decision, the
minor premise of the practical syllogism is actually the conclu-
sion of a distinct syllogism; it is the conclusion of an indepen-
dent chain of reasoning by the practical reasoner about the
theoretical reasoning offered by the expert, which functions as a
lemma for the principal syllogism.13

fundamental purpose is achieving victory in the case by persuading the judge to agree
with their client’s theory of the case), but not to the function that evidence has for the
decision-maker, who is not a mere passive subject of persuasion and whose task is
determining the truth of the facts that are relevant to the case, regardless of how
persuasively they are presented. Thus, for Taruffo, the function of evidence for the
judge is not rhetorical but rather epistemic: to the decision-maker, evidence is an in-
strument of knowledge. In order to reach this conclusion, Taruffo refers to the distinc-
tion between the persuasiveness and the cognitive capacity of a statement, concluding
that, for the judge, evidence must be assessed with respect to the latter. Id. at 133–34.
This reinforces the importance of the decision-maker having the epistemic compe-
tence to properly understand the facts that are the subject of the evidence.
12. H.A. Hammelmann, Expert Evidence, 10 MOD. L. REV. 32, 33 (1947) (internal
citations omitted).
13. Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107
YALE L.J. 1535, 1634 (1998). This distinct syllogism, which Brewer calls secondary
argument, is construed by “a chain of reasoning that includes a set of related judge-
ments about the reasoning that the expert himself used to arrive at the judgements
he reports testimonially to the practical reasoner.” Id. at 1646. The purpose of such
chain of reasoning, according to Brewer, is to determine whether the scientific process
employed by the expert in reaching the conclusion that serves as a minor premise in
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Fall 2021] Rethinking the Structure of Construction Arbitration 51

Such a chain of reasoning that accompanies the expert’s conclu-

sion can be translated, for example, into the scientific reliability test
adopted in Daubert v. Merrell Dow Pharmaceuticals.14
The Daubert test is used by U.S. courts to assess whether an ex-
pert’s testimony is based on scientifically valid reasoning and, thus,
may be admitted as evidence. Under the Daubert test, courts analyze
(1) whether the theory or technique in question can be (and has been)
tested; (2) whether it has been subjected to peer review and publica-
tion; (3) its known or potential error rate; (4) the existence and main-
tenance of standards controlling its operation; and (5) whether it has
attracted widespread acceptance within a relevant scientific commu-
nity.15 But the assessment performed by the nonexpert judge or arbi-
trator will not refer to the substance of the conclusion itself, because
the decision-maker often lacks the necessary expertise to do so. In-
stead, it will be limited to the process by which the expert arrived at a
conclusion and other circumstances that makes the expert’s testi-
mony procedurally reliable. For instance, arbitrators in construction
disputes are usually experienced in the field and possess enough
knowledge to evaluate the substance of the expert’s assessment re-
garding many complex technical issues. However, this will not neces-
sarily be the case for all complex issues that arise in modern
construction disputes.16
Construction projects often involve certain common stages (e.g.,
tendering, design or engineering, procurement, civil works, erection,
commissioning, and operation) and types of documents (e.g., tender
documentation, civil, mechanical, and electrical drawings, flow dia-
grams, procurement documentation, schedules, daily reports, trans-
mittals, requests for information, non-conformities, and variation
orders) with which arbitrators can become accustomed despite their
volume and complexity. However, certain construction projects entail
greater technical complexity as they “involve specialist engineering
works such as shipbuilding; bespoke plant and machinery such as

the legal/practical syllogism provides the appropriate level of confidence to justify the
nonexpert’s reliance on the conclusion, at least for practical reasons. Id. at 1634–71.
14. 509 U.S. 579 (1993).
15. Id. at 593–94.
16. “The complexity of process design and construction technologies are way be-
yond the comprehension of ‘ordinary’ engineer/technical arbitrators, let alone law
professors or other legal practitioner arbitrators.” Martin Hunter, Expert Conferenc-
ing and New Methods, 4 TRANSNAT’L DISP. MGMT. 7 (2007).
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52 Harvard Negotiation Law Review [Vol. 27:43

turbines, generators and aircraft engines; or works that aim to sup-

port energy projects such as upstream oil and gas projects or renew-
ables (wind, wave, solar) and nuclear plants.”17 In the case of the
latter, for instance, “[e]very stage of the process [to develop a nuclear
power plant] will likely involve thousands of engineers, manufactur-
ing and construction personnel in an iterative process that cannot
fully be reflected in a traditional project schedule.”18 Most arbitrators
will probably lack the specific knowledge necessary to evaluate very
technical disputed issues arising out of such projects and, conse-
quently, will need to rely on the experts’ conclusions.
To sum up, when expert evidence relates to issues that pose a
sufficient level of complexity that the nonexpert decision-maker is
unable to assess the substance of the expert’s opinion, she will have
to rely on such opinions, provided that they are procedurally reliable.
Construction disputes, wherein complex technical issues are ubiqui-
tous, are arguably among “those instances where the complexity of
technical issues requires more than expert assistance, and where that
assistance crosses a threshold and becomes reliance on expert opinion
by the arbitral tribunal.”19 As with many other types of international
disputes,20 such reliance is unavoidable.
Yet, the sole fact that the arbitrator must rely on the expert opin-
ion’s substance, by itself, does not deprive the opinion of its eviden-
tiary nature. In most cases, even if the arbitrator treats the expert’s
conclusions as true facts, they must be subsumed in a broader legal
analysis, that is, they must be measured against a legal rule or stan-
dard for the legal issue to be resolved.

B. The logical space between the technical and the legal conclusion
A separate problem arises when the issue addressed by the ex-
pert (i.e., the technical question that must be answered) is at the

17. Stavros Brekoulakis & David Brynmor Thomas, Introduction, in THE GUIDE
TO CONSTRUCTION ARBITRATION 1, 1 (Stavros Brekoulakis & David Brynmor Thomas
eds., 3d ed. 2019).
18. Jane Davies Evans, Construction Arbitrations in the Nuclear Sector, in THE
GUIDE TO CONSTRUCTION ARBITRATION, supra note 17, at 288, 297.
19. Sophie Nappert & Fabricio Fortese, Assessing Expert Evidence, in THE LEAD-
ING ARBITRATORS’ GUIDE TO INTERNATIONAL ARBITRATION 837, 837 (Lawrence W. New-
man & Richard D. Hill eds., 3d ed. 2014).
20. Matthew W. Swinehart, Reliability of Expert Evidence in International Dis-
putes, 38 MICH. J. INT’L L. 287, 296–97 (2017) (“The complexity of international dis-
putes means that when decision makers rely on expert evidence, they rely heavily on
it. Expert evidence often has wide-ranging and significant influence on decision mak-
ers and may even determine the outcome of key issues in a dispute.” (internal cita-
tions omitted)).
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same time or at least to a great extent indistinguishable from the

issue (or some of the issues) of the dispute itself (i.e., the legal ques-
tion that must be answered by the tribunal to resolve the contro-
versy). Continuing with the syllogistic description of the legal
reasoning task, the relevant instance is one in which the expert pro-
vides both the major premise (in the form of a technical rule or stan-
dard) and the minor premise (the particular instance whose predicate
is the subject of the major premise, which in turn is materialized in
other means of evidence).21 In other words, the expert reaches a con-
clusion that is not incorporated in the nonexpert’s own reasoning pro-
cess, but rather goes directly (or with very little intervention from the
adjudicator) to the outcome of the case.
For example, take a hypothetical dispute where one of the legal
issues is whether the bridge collapsed because the composition of the
materials used by the contractor did not accord with best practices or
because of an unforeseeable increase in the strength of the wind (i.e.,
force majeure). In this hypothetical, the expert is supposed to answer
this precise question, and her conclusion, provided that the report is
admitted as evidence by the decision-maker, will determine the out-
come of that specific legal issue. This synchrony of issues is not un-
common in construction arbitration, where “the outcome often
depends almost entirely on the technical assessment of the facts.”22
When the issues are so synchronous, the objective of the expert’s as-
sessment is essentially identical to the arbitrator’s task.
A natural objection against this argument would be that the de-
scribed situation is covered by the “ultimate issue” rule, which “pro-
hibit[s] an expert from testifying about his opinion on the ultimate
issue in the case [because] such testimony would invade the province
of the jury.”23 This rule originated in the context of jury trials and
was intended to prevent the jury from being unduly influenced by the
expert’s opinion.24 Cogently, this would not be the case in construc-
tion arbitration proceedings, where the decision-maker is not only a

21. Hand, supra note 2, at 51.

22. Elina Mereminskaya & Fernando Landeros, Suggested Policies for Tribunal-
Appointed Experts in Construction Disputes, 14 TRANSNAT’L DISP. MGMT. 1 (2017).
23. Faust F. Rossi, Modern Evidence and the Expert Witness, 12 LITIG. 18, 24
(1985). This rule was abolished in the United States as reflected in Rule 704(a) of the
U.S. Federal Rules of Evidence, which currently provides that “[a]n opinion is not
objectionable just because it embraces an ultimate issue.”
24. Geert Philip Stevens & Emma Charlene Lubaale, Revisiting the Historical
Context Surrounding the Development of the Ultimate-issue Rule to Inform its Future
in South African Law of Evidence, 22 FUNDAMINA 94, 100–04 (2016).
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54 Harvard Negotiation Law Review [Vol. 27:43

legal expert but probably is also very experienced in the field of con-
struction projects. This is why, as mentioned above, the mere fact
that the expert opinion’s subject matter is the same as the ultimate
issue of the case does not imply, by itself, that such an opinion loses
its evidentiary nature. It must be coupled with the fact that the tech-
nical issue is too complex for the tribunal to evaluate its substance.
When the technical issue is both highly complex and outcome-proxi-
mate, the expert would be, in fact, invading the tribunal’s province.
Moreover, the argument advanced in this article differs from
that contained in the ultimate issue rule. There would be no gain in
simply excluding this evidence because the issue must be resolved by
someone with epistemic competence, which the nonexpert decision-
maker does not have. My answer is that this is simply not evidence,
but rather an assessment that must come from the tribunal. Herein
lies the structural asynchrony between the nature of the described
issues and process and rules under which they are resolved.
Consequently, when the expert’s assessment falls on an issue
that is both (1) too complex for the non-expert decision maker to eval-
uate in substance and (2) logically identifiable with the legal dispute
on which the adjudicator must decide, then the expert’s assessment
should not be treated as evidence.

III. A DISPUTE SYSTEMS DESIGN APPROACH TO THE ASSESSMENT OF

TECHNICAL ISSUES IN CONSTRUCTION DISPUTES

The natural next step from this conclusion is to analyze the

structure of the arbitration proceeding. In this analysis, the aim will
be to discover an appropriate way to shift the assessment of highly
complex and determinative technical issues away from the parties’
presentation of evidence and toward the tribunal. This is where Dis-
pute Systems Design comes in.
Focusing on highly complex, outcome-proximate technical issues,
DSD methodology can be employed to analyze the current practice of
expert evidence production in construction disputes and to propose a
design that better meets the interests of the relevant stakeholders.
Although there are different approaches to DSD methodology,
some authors identify a unitary scheme with five phases:
(1) conflict assessment—analysis of the context in which the dis-
putes occur, identification of the stakeholders of the conflict,
their interests and positions and investigation into the nature,
costs and types of the disputes;
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Fall 2021] Rethinking the Structure of Construction Arbitration 55

(2) assessment of conflict resolution procedures in place—map-

ping the available procedures, identification of the most fre-
quently used procedures and the causes for their use,
assessment of the effects (cost and benefit) of the available pro-
cedures, particularly taking into account conflict assessment;
(3) designing a scheme for improving the dispute resolution sys-
tem—a systematic blueprint for improving upon the shortcom-
ings of the available procedures guided by the DSD principles;
(4) implementation of the designed scheme—putting the
changes into place; and
(5) evaluating and monitoring of the new system—receiving
feedback from the stakeholders and analyzing the system to de-
termine if further recalibration is needed.25
Only the first three stages are relevant to assessing highly com-
plex, outcome-proximate technical issues.26 In this section, I identify
the relevant stakeholders and their underlying interests in this as-
sessment. Based on evaluation criteria that cohere with these inter-
ests, in the following section I assess the main issues that arise with
regard to expert evidence and the ways in which current systems ad-
dress them.

A. Conflict assessment: Identifying the issue, the stakeholders, and

their underlying interests
The issue or conflict that is the subject of my analysis, as refer-
enced above, is the expert’s assessment of technical issues that arise
in construction disputes that (1) are too complex for the nonexpert
decision-maker to evaluate in substance and (2) amount to a decision
of the legal issue of the case.
Arguably, the main stakeholders in construction arbitration are
the disputing parties, which often include owners, contractors, and
subcontractors. However, other participants in the proceeding—arbi-
trators, counsel, and experts—also have a stake in designing the pro-
cess through which technical issues are assessed and ultimately

25. Ilija Mitrev Penusliski, A Dispute Systems Design Diagnosis of ICSID, in THE
BACKLASH AGAINST INVESTMENT ARBITRATION: PERCEPTIONS AND REALITY 507, 508
(Michael Waibel et al. eds., 2010).
26. Although Dispute Systems Design is commonly used to evaluate a dispute
settlement mechanism as a whole, it also provides a useful framework to assess and
re-design specific parts of it, such as the way in which a certain type of evidence (i.e.,
expert evidence) is produced. In this sense, the Dispute Systems Design process ana-
lyzes not only the existing systems that are in place to address a specific kind of con-
flict, but also “what about the system is effective and what is inefficient.” Susan D.
Franck, Integrating Investment Treaty Conflict and Dispute Systems Design, 92 MINN.
L. REV. 161, 184 (2007).
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56 Harvard Negotiation Law Review [Vol. 27:43

resolved in construction disputes. Consequently, for purposes of ana-

lyzing the existing mechanisms in accordance with step 1 of DSD
methodology, I have chosen to consider the interests of the arbitral
tribunal, the parties, their legal counsel, and the experts.27
The arbitrators who have been appointed to resolve a construc-
tion dispute that presents complex technical issues are usually inter-
ested in obtaining an early,28 objective,29 coherent30 and cost-
effective31 assessment of the disputed technical issues as doing so al-
lows them to focus on the legal assessment of the case. In other
words, arbitrators may reasonably expect to get useful and effective
assistance from experts to deal with the technical issues but not to be
presented with conflicting and/or biased expert evidence over which
they would have to perform an analysis that goes beyond their own
area of expertise. Needless to say, arbitrators have an interest in ren-
dering an award that is both legally and technically sound, and that

27. To the extent that an efficient and effective way to resolve technical issues in
construction disputes contributes to the cost-effectiveness of the dispute mechanism
as a whole (which I strongly believe to be true) and, consequently, to the overall sta-
bility and economic health of the construction industry, one can reasonably consider
foreign and local investors, communities that interact with construction projects, em-
ployees of the construction companies, and similarly situated persons or entities to be
at least indirect stakeholders.
28. ICC COMM’N ON ARB. & ADR, ICC COMMISSION REPORT CONTROLLING TIME
AND COSTS IN ARBITRATION 13 (2012) (“It is essential for there to be clarity at an early
stage (by agreement, if possible) over the subject matter and scope of any expert evi-
dence to be produced.”).
29. Judith B. Ittig, Secrets of a Winning Presentation, in CONSTRUCTION ADR 255,
261 (Adrian L. Bastianelli & Charles M. Sink eds., 2014) (“The common view among
arbitrators is that experts are partisan, that they are not neutral evaluators and that
they have been hired to express a particular view.”). The author, who expresses the
transcribed opinion as an arbitrator, adds that the skepticism directed to experts is
reinforced by the fact that some attorneys show a lack of understanding (or confi-
dence) on the technical aspects of the case by handing over the testimony to the expert
without engaging in proper direct examination. Id. at 260–61.
30. Edmund M. Amorosi & Richard F. Smith, The Arbitration Hearing, in CON-
STRUCTION ADR, supra note 29, at 227, 241. (“[A]rbitrators are seeking ways to im-
prove the usefulness of expert testimony to avoid situations where the arbitrators are
presented with two entirely different technical explanations for the issues in dis-
pute.”); John W. Hinchey, Chapter 14: International Arbitration, in CONSTRUCTION
ADR, supra note 29, at 315, 380 (“Many experienced international arbitrators have
recognized that, quite often, the expert reports or opinions are like ‘passing ships in
the night’, never fully engaging with each other on the particular points in dispute.”).
31. Drawing from his experience as an arbitrator, Mr. Bernard Hanotiau com-
mented that “[q]uantum experts tend to be too wordy, too technical and unable to
clearly express their reasoning in terms that are easily understandable by laymen,
and this, even in the so-called didactic presentation before their cross-examination.”
Anne Véronique Schlaepfer & Vanessa Alarcón Duvanel, Direct and Re-Direct Exami-
nation, in THE GUIDE TO ADVOCACY 70, 76 (Stephen Jagusch QC, Philippe Pinsolle &
Alexander G. Leventhal eds., 5th ed. 2021).
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Fall 2021] Rethinking the Structure of Construction Arbitration 57

is based on the proper assessment of the technical issues that are

involved in the dispute.
The two main interests of the disputing parties regarding the
production of expert evidence are (1) the cost-effectiveness32 of the
procedure and (2) the appropriateness of the resolution (i.e., that the
technical issues are resolved by decision-makers with suitable exper-
tise).33 In turn, the decision-makers’ expertise leads to a more relia-
ble and predictable outcome.34
So far, it is possible to identify aligned interests among the mem-
bers of the arbitral tribunal and the disputing parties in ensuring
that the technical issues are (1) resolved at a reasonable cost of time
and money, (2) identified and narrowed at an early stage of the proce-
dure, and (3) assessed by a person who is epistemically competent to
do so.
While legal counsel and expert witnesses intervene in the arbi-
tration to represent the interests of the parties that hired them,35
they also have individual interests in the procedure that may or may
not be aligned with the former. The attorneys and experts may not be
as interested in reducing the time costs of the technical assessment of
issues as their clients, especially if their fees are determined on an

32. James R. Madison, Suitability of Alternative Dispute Resolution Processes for

Resolving Construction Disputes, in ADR, A PRACTICAL GUIDE TO RESOLVE CONSTRUC-
TION DISPUTES: ALTERNATIVE DISPUTE RESOLUTION IN THE CONSTRUCTION FIELD 11, 12
(Alan E. Harris, Charles M. Sink, & Randall W. Wulff eds., 1994) (“The first concern
is the time required to educate the decision makers about the subject matter and
vocabulary, to create a frame of reference within which to consider disputed issues.
Time, of course, is money or, in this case, cost.”).
33. According to a survey of corporate users of international arbitration per-
formed by PricewaterhouseCoopers in 2006, some of the most important considera-
tions when selecting arbitrators were specialization in the industrial sector and cross-
disciplinary expertise, including technical expertise. PRICEWATERHOUSECOOPERS, IN-
TERNATIONAL ARBITRATION: CORPORATE ATTITUDES AND PRACTICES 16–17 (2006), http://
www.arbitration.qmul.ac.uk/media/arbitration/docs/IAstudy_2006.pdf [https://
perma.cc/763L-M8QN]; see also Hinchey, supra note 30, at 352.
34. Madison, supra note 32, at 12 (“The second, and perhaps more serious, prob-
lem is lack of predictability of outcome, with an attendant potential for injustice.
When a person not grounded in a field must decide issues of credibility or persuasive-
ness, the decision tends to be made on the basis of touch and feel factors, such as body
language and speaking style. The decision coincidentally may be right, but the out-
come of a construction dispute will be more reliable or predictable if based on techni-
cal merit.”).
35. Even though experts can also be appointed by the arbitral tribunal, as we
shall see, the prevalent practice in international arbitration is for the parties to ap-
point expert witnesses. Sebastiano Nessi, Expert Witness: Role and Independence, in
NEW DEVELOPMENTS IN INTERNATIONAL COMMERCIAL ARBITRATION 2016 at 71, 72
(Christoph Müller, Sébastien Besson, & Antonio Rigozzi eds., 2016).
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58 Harvard Negotiation Law Review [Vol. 27:43

hourly basis; however, they incur opportunity costs with respect to

other possible professional commitments.
Furthermore, the expert has an interest in maintaining a reputa-
tion for objectiveness and technical accuracy in assessing the case.
Her ability to do so will depend, among other factors, on the possibil-
ity of freely expressing her scientific opinions36 and the completeness
of the information provided by the hiring parties to prepare the ex-
pert report.37 Similarly, legal counsel have an interest in receiving
input from the experts that is functional to the legal arguments,
which will generally translate in technical conclusions that can be
directly transcribed into the written submissions.
In conclusion, in evaluating existing mechanisms and proposing
a new model based on the DSD methodology, stakeholders in a con-
struction dispute have, to some extent, a common interest in ensur-
ing that the technical issues are (1) resolved at a reasonable cost of
time and money, (2) identified and narrowed from an early stage of
the procedure, and (3) assessed by a person who is epistemically com-
petent to do so (4) in a way that allows an objective and informed
assessment of the relevant available information.

B. Assessment of available procedures: Main challenges that arise

around expert evidence and existing mechanisms to
address these challenges

Current mechanisms generally fail to satisfy the identified inter-

ests when it comes to the assessment of highly complex and decisive
technical issues. Applying DSD methodology, I will evaluate these
mechanisms using two main evaluation criteria: cost-effectiveness

36. Kate Parlett, Parties’ Engagement with Experts in International Litigation, 9

J. INT’L DISP. SETTLEMENT 440, 451 (2018) (“Furthermore, an expert is likely to feel
constrained by his or her own reputation and professionalism. These are likely to be
highly valued and can be expected to limit the extent to which any third party can
influence the expert’s expression of honest opinion.”).
37. Bernardo Cremades, The Expert Witness in International Arbitration, in DE-
FINING ISSUES IN INTERNATIONAL ARBITRATION: CELEBRATING 100 YEARS OF THE
CHARTERED INSTITUTE OF ARBITRATORS 192, 195 (Julio César Betancourt ed., 2016)
(“Counsel pursuing a particular line of argument may restrict the information pro-
vided to the appointed experts with a view to retaining control over strategy.”); Guy
Elkington & Paul Taplin, Expert Evidence in Construction Disputes: Expert Witness
Perspective, in THE GUIDE TO CONSTRUCTION ARBITRATION, supra note 17, at 236, 245
(“For most experts, an area of continual difficulty is the availability and quality of
evidence.”).
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Fall 2021] Rethinking the Structure of Construction Arbitration 59

and satisfaction with the outcome.38 I review some of the main chal-
lenges that arise around expert evidence that are linked to cost-effec-
tiveness and the stakeholders’ satisfaction with the outcome, as well
as the manner in which those problems are commonly addressed. I
conclude that the asynchrony between (1) the nature of the assess-
ment of highly complex, outcome-proximate technical issues and (2)
the position of such assessment within the arbitration proceeding’s
structure to a great extent explains the existence of those challenges
and the fact that they remain unsolved.

1. Cost-effectiveness
Construction arbitration generally entails major challenges in
terms of efficiency39 not least because the “use of experts can strongly
affect the cost-effectiveness of the arbitration process.”40 Jonathan

38. Stephanie Smith & Janet Martinez, An Analytic Framework for Dispute Sys-
tems Design, 14 HARV. NEGOT. L. REV. 123, 127–28 (2009); CATHY A. COSTANTINO &
CHRISTINA MERCHANT, DESIGNING CONFLICT MANAGEMENT SYSTEMS: A GUIDE TO CRE-
ATING PRODUCTIVE AND HEALTHY ORGANIZATIONS 171–75 (1996). This article does not
reach other evaluation criteria such as the effect on relationships (since the assess-
ment of technical issues takes place in an arbitration that commenced after the con-
flict arose between the parties and, in any case, the way in which this particular
aspect of the dispute is managed will only have a marginal impact on the relationship
compared to the arbitration proceeding as a whole), or the recurrence of disputes (as
this will be mostly determined by the development of other elements within the con-
struction industry).
39. As Kiefer and Cole point out, construction disputes have several characteris-
tics that distinguish them from other types of commercial conflicts:
They can be exceptionally large in scope, involving multiple interested par-
ties with independent contractual relationships and amounts in dispute
reaching into the hundreds of millions of dollars, even eclipsing a billion dol-
lars at times. The timelines of these projects—from initial development
through engineering, construction and commissioning—span years, with key
documentation created daily by dozens of witnesses. This often leads to an
enormous amount of data to be reviewed and evaluated as evidence. Disputes
concerning issues of time, cost and quality frequently give rise to the need to
analyze and assess the cause of project delays through complex schedule
analyses and expert testimony.
David Kiefer & Adrian Cole, Suitability of Arbitration Rules for Construction Dis-
putes, in THE GUIDE TO CONSTRUCTION ARBITRATION, supra note 17, at 81, 81–82. Effi-
ciency in construction arbitration has been addressed by many others before. See, e.g.,
I. N. Duncan Wallace, Deficiencies in Current International Arbitration Practice in
Construction Cases, 7 ARB. INT. 149, 149–54 (1991); James P. Wiezel, Cost-Effective
Construction Arbitration, 31 CONSTR. LAW. 15, 15–22 (2011).
40. Wiezel, supra note 39, at 19. Out of the arbitration context (but in terms that
are still applicable to it) expert evidence has been identified by some—and, more par-
ticularly, by Lord Woolf in his 1995 “Access to Justice: Report”—as being “the major
cause of cost increases in civil litigation, particularly by reason of its excessive or
inappropriate use and the partisanship of experts”. Cremades, supra note 37, at 192.
Interestingly, after acknowledging that some of the attempts to solve this problem,
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60 Harvard Negotiation Law Review [Vol. 27:43

Lee explains the problem by referencing two examples of arbitrations

regarding the construction of industrial plants. The first example is a
dispute arising from an Engineering, Procurement, and Construction
(“EPC”)41 contract. Even though the amount in dispute was a rela-
tively meager $25 million, experts from at least six disciplines were
involved: civil engineers, electrical engineers, software engineers,
programming/planning experts, project management experts, and
quantum experts. The direct costs relating to the production of expert
evidence alone rose to $5.5 million, without even considering the cost
and time invested by the attorneys and the tribunal in reviewing the
expert reports. In the second example referenced by Lee, one party
spent almost ten times as much as the other party on technical evi-
dence, without this imbalance being visible to either party or the tri-
bunal in advance.42
Reformers have proposed and implemented solutions to address
cost-effectiveness in construction disputes. Some solutions arose in
response to specific characteristics of construction arbitrations that
make the production, management, and assessment of evidence com-
plicated and costly.43 The solutions include the use of Building Infor-
mation Modeling (“BIM”);44 Critical Path Network (“CPN”)45

such as meetings between experts, have been unsuccessful, Lord Woolf advocates for
the idea of a court-appointed expert and that “in complex litigation it may be benefi-
cial for the court to sit with an assessor” Ian Richard Scott, George Applebey & Keith
Uff, Access to Justice: Lord Woolf’s Interim Report, 14 CIV. JUST. Q. 231, 240 (1995).
41. Under this type of contract, “a single contractor takes responsibility for all
elements of design (engineering), construction and procurement of a project on a
‘turn-key’ basis.” Ellis Baker, Richard Hill & Ibaad Hakim, Allocation of Risks in Con-
struction Contracts, in THE GUIDE TO CONSTRUCTION ARBITRATION, supra note 17, at
74, 77.
42. Jonathan Lee, Controlling Expert Evidence in International Commercial Ar-
bitration, 19 ASIAN DISP. REV. 4 (2017).
43. The complicated cost-raising characteristics include the number of docu-
ments involved, the importance of accurately locating facts in the timeline of a pro-
ject, and the management of different claims that form part of a single proceeding.
44. The main purpose of using BIM in construction arbitration is to provide an
accurate and easy reconstruction of the facts of an infrastructure project, instead of
having to review a large number of documents such as workbooks or daily reports.
Basically,
BIM digitally replicates the physical and functional characteristics of a
building, facilitates the process of sharing that information, and permits de-
cisions about the project to be implemented within the model, beginning with
the design concept and continuing throughout the project’s lifecycle. It allows
the design and construction team to build the project virtually, and after con-
struction it serves as a continuing, interactive database for the operation,
maintenance, and alteration of the project.
Carl J. Circo, A Case Study in Collaborative Technology and the Intentionally Rela-
tional Contract: Building Information Modeling and Construction Industry Contracts,
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Fall 2021] Rethinking the Structure of Construction Arbitration 61

(provided that this tool was also used during the execution of the pro-
ject);46 and Technology Assisted Review of documents (“TAR”).47
Other tools that generally contribute achieving efficiency in interna-
tional arbitration proceedings include the Redfern Schedule48 and
the Scott Schedule.49 While these tools are not strictly linked to the

67 ARK. L. REV. 873, 881–82 (2014). For the use of BIM in the context of construction
disputes, see Aref Charehzehi et al., Building Information Modeling in Construction
Conflict Management, 9 INT’L J. ENG’G BUS. MGMT., at 1 (2017); ANDREW BURR, DELAY
AND DISRUPTION IN CONSTRUCTION CONTRACTS 573–85 (5th ed. 2016).

45. Gasan Kallo, The Reliability of Critical Path Method (CPM) Techniques in the
Analysis and Evaluation of Delay Claims, 38 COST ENG’G. 35–37 (1996)
46. ICC COMM’N ON ARB. & ADR, ICC COMMISSION REPORT CONSTRUCTION INDUS-
TRY ARBITRATIONS RECOMMENDED TOOLS AND TECHNIQUES FOR EFFECTIVE MANAGE-
MENT OF ARBITRATIONS 18 (2019).

47. For a brief description, see Andrew Stephenson & Dado Hrustanpasic, Man-
aging Big Data - the Constant Challenge for a Construction Lawyer, COORS CHAMBERS
WESTGARTH (Apr. 26, 2018), https://www.corrs.com.au/insights/managing-big-data-
the-constant-challenge-for-a-construction-lawyer [https://perma.cc/LEW4-23GQ]. The
utility of these technology-based tools (such as BIM and TAR) will often depend on the
extent to which technology-based record mechanisms were used during the construc-
tion project itself. In this sense, some explain that construction documents
frequently evade these methods, which largely rely on searchable written
content not available in many typical construction records: photographs,
drawings, and schedules frequently do not have sufficient written content to
be located or analyzed using these technologies and techniques. Handwritten
documents, such as project logs and diaries, generally do not yield machine-
readable content, and optical character recognition (“OCR”) programs cur-
rently may not provide sufficiently-accurate results to successfully identify
relevant documents using search terms or TAR.
Eric A. O. Ruzicka & Kate Johnson, Constructing a Successful E-Discovery Strategy:
Foundational Principles and Building Blocks, 12 J. AM. COLL. CONSTR. LAWYERS 23,
23–24 (2018).
48. This tool, which is commonly utilized under Rule 3(3) of the International Bar
Association Rules on the Taking of Evidence in International Arbitration, provides a
way of keeping a record, in separate columns, of each party’s requests for documents,
along with the reasons for each request, the response of the opposing party and, when
applicable, the determination of the tribunal. Also, it “makes it possible for the arbi-
tral tribunal to make an informed decision as to whether or not a particular docu-
ment, or class of documents, should be produced, without having to be involved in the
details of the exchanges between the parties’ lawyers and, usually, without the need
for a meeting.” NIGEL BLACKABY ET AL., REDFERN AND HUNTER ON INTERNATIONAL AR-
BITRATION 384 (6th ed. 2015).

49. The Scott Schedule consists of a “table in which the plaintiff itemizes its alle-
gations (for example, each defect or variation), and the defendant then adds its posi-
tion with respect to each item. Parties may not make non-specific allegations or
simply ‘not admit’ or ‘deny’ their opponent’s allegations. Scott Schedules are the an-
tithesis of pleadings, which are often extremely voluminous and unnecessarily com-
plex and require an inordinate amount of time just to decipher what the issues
actually are.” Paula Gerber & Diana Serra, Construction Litigation: Are We Doing It
Better?, 35 MELB. U. L. REV. 933, 961 (2011).
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62 Harvard Negotiation Law Review [Vol. 27:43

way in which expert evidence is produced and assessed, they contrib-

ute to achieving cost effectiveness in construction arbitrations. Who-
ever performs the assessment of technical issues in construction
disputes, whether a party-appointed expert witness or a member of
the tribunal, should take advantage of these mechanisms.
Other cost-effectiveness related solutions are directly linked to
the assessment of technical issues. These solutions arise precisely
from the procedural structure of expert evidence, specifically when
experts are appointed by the parties, as is the case in most interna-
tional arbitrations. These include, among others, the possibility for
the experts,
to meet before the hearing, on a without prejudice basis, to iden-
tify those areas in their respective reports where they agree [on]
the issues. There may be a direction for a joint report identifying
those areas where they have reached agreement and those
which remain in dispute, with a brief description of their respec-
tive views.50
Efficiency in the production of expert evidence is also sought
through the early determination of the expert’s terms of reference,
which consist of a “written set of instructions that contain the param-
eters by which the expert must conduct his investigation.”51 The pur-
pose of such terms of reference is precisely the early determination of
the specific issues that will be covered by the experts. Similarly, the
ICC has recently recommended holding case management confer-
ences to agree on the scope and proceedings to produce expert evi-
dence.52 It has also recommended that expert reports be exchanged
prior to the hearing and drafting of supplementary reports.53
However, especially when technical issues reach a certain level
of complexity and logical proximity to the legal dispute, increased ef-
forts are required to produce and assess expert evidence, as well as to
resolve those issues in accordance with the underlying interests of
the relevant stakeholders. In fact, when the technical issues are
highly complex and outcome-proximate, treating them as evidence is

50. JANE JENKINS, INTERNATIONAL CONSTRUCTION ARBITRATION LAW 267 (2d ed.
2014).
51. DAVID D. CARON & LEE M. CAPLAN, THE UNCITRAL ARBITRATION RULES. A
COMMENTARY 640 (2d ed. 2013). Although the transcribed definition is referred to the
tribunal-appointed experts that are regulated in article 29 of the 2010 UNCITRAL
Arbitration Rules, the early establishment of common terms of reference can also be
agreed upon by the parties with respect to party-appointed expert witnesses.
52. Lee, supra note 42, at 4–5; ICC COMM’N ON ARB. & ADR, supra note 46, at
22–23.
53. ICC COMM’N ON ARB. & ADR, supra note 46, at 22–23.
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Fall 2021] Rethinking the Structure of Construction Arbitration 63

the main source of inefficiency, as a significant number of extra steps

must be taken for the assessment of the precise issues to be used in
deciding the case. Each party must work with its own expert to draft
the reports, and each party must review and analyze the expert re-
ports prepared by the other party. Considering the complexity and
relevance of the issue at stake, those activities will be particularly
time-consuming. Likewise, the tribunal must spend time and effort to
understand the reports and, in the common situation of conflicting
reports, must introduce additional mechanisms to deal with such con-
flict. These efforts include asking the experts to meet and determine
areas of agreement, appointing a third expert, and decreeing simulta-
neous witness conferencing at a hearing.
In other words, many of the challenges that these solutions are
meant to address arise precisely from the presentation of the techni-
cal assessment of facts as evidence by the parties. If this were not the
case, and such an assessment came from the tribunal, many of the
extra steps would not be necessary.

2. Satisfaction with the outcome

As explained above, interested stakeholders are satisfied with

the outcome of the assessment of complex and decisive technical is-
sues to the extent that it is performed cost-effectively and by an epi-
stemically competent person. This competent person must be able to
provide an objective and honest conclusion on the technical issues
that are relevant to the case, based on information that is complete
and accurate.
At least two circumstances that interact with each other may
hinder the achievement of the described standard: the level of inde-
pendence and impartiality of expert witnesses (along with the inter-
vention of legal counsel in the expert reports), and the quandary
created by the submission of conflicting expert evidence by the par-
ties. Existing solutions to address these issues are unsatisfactory, at
least in cases where the assessment of the technical issue is not evi-
dentiary in nature because the issue is highly complex and outcome-
proximate.
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64 Harvard Negotiation Law Review [Vol. 27:43

a. Independence and impartiality of expert witnesses and

party control over expert evidence
One of the main critiques directed to expert witnesses is that,
since they are hired and paid by one of the parties,54 they would lack
independence55 and impartiality.56 This critique is particularly seri-
ous as the mission of the experts is to assist the tribunal57 by
presenting independent and impartial opinions.58 The danger is that,

54. Unsurprisingly, the fact that the expert is compensated by one of the parties
is commonly identified as the main source of the expert’s perceived lack of indepen-
dence. In Perrin’s explanation,
[t]he financial aspect of expert witness practice has a pervasive influence on
both sides of the relationship. The lawyer expects cooperation from the ex-
pert and ‘good results’ (i.e., a favorable outcome at trial). Meanwhile, the ex-
pert is motivated to please the lawyer so that the lawyer will hire the expert
again. In addition, the expert, unlike lay witnesses, is motivated to spend
time as a participant in the litigation, whether preparing to testify as a wit-
ness or assisting the lawyer in preparing to examine the opposing expert.
The expert becomes an essential member of the trial team; an advocate of the
party’s position.
Timothy L. Perrin, Expert Witnesses Under Rules 703 and 803(4) of the Federal Rules
of Evidence: Separating the Wheat from the Chaff, 72 IND. L.J. 939, 965 (1997).
55. It is important to note that “independence” may have more than one mean-
ing. In this sense,
[t]here is a danger here of confusion because of the ambiguity of the term
‘independence’, particularly in the context of international arbitration. Inde-
pendence can refer to the quality of mind of not being influenced by factors
irrelevant to the expertise. In this sense ‘independence’ is used synony-
mously with the more precise and preferable terms ‘objective’ or ‘impartial’.
This is a quality required of experts. However, independence is also com-
monly used in international arbitration to refer to an absence of certain per-
sonal or economic relationships with the parties. Independence in this second
sense is mandatory in a member of the tribunal, but not in an expert witness.
Cairns and Cremades, supra note 8, at 15. Two comments are important here. First,
the difference between one meaning of “independence” and the other, as presented by
Cairns and Cremades, might not always be straightforward. Indeed, the absence of
independence as described in the second definition might give rise to reasonable
doubts as to the independence of the expert according to the first definition. Second,
as I will argue throughout the present work, the task that experts perform in many
construction disputes turns out to be essentially similar to that of the arbitrator’s.
Therefore, applying a lower standard of independence seems less justified.
56. Although this critique would only be pertinent in the context of common law
jurisdictions where the parties commonly appoint the experts and not in civil law
countries in which the tribunal typically appoints experts; the critique remains rele-
vant to our analysis because party-appointed experts are the general rule in interna-
tional arbitration proceedings.
57. Nathalie Voser & Katherine Bell, Expert Evidence in Construction Disputes,
in THE GUIDE TO CONSTRUCTION ARBITRATION, supra note 17, at 168, 172.
58. Doug Jones AO, Methods for Presenting Expert Evidence, in THE GUIDE TO
EVIDENCE IN INTERNATIONAL ARBITRATION 154, 155 (Amy C Kläsener, Martin Magál &
Joseph E. Neuhaus eds., 2021) (“The general role of expert witnesses, whether they
are appointed by the parties or the tribunal, is to assist the tribunal in its decision-
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Fall 2021] Rethinking the Structure of Construction Arbitration 65

contrary to the main purpose of having expert evidence, the tribunal

will be presented with conflicting expert reports tailored to the ap-
pointing party’s interpretation of facts, which is of little use for prop-
erly resolving the case.
From a practical perspective, this risk can materialize for two
main reasons. First, the different technical approaches to common
construction issues and diverse methodologies employed by expert
witnesses may lead to distinct conclusions59 without the arbitrators
always being able to distinguish which is more appropriate for the
case at issue. This is especially relevant when the issue involves a
high level of complexity. Second, the involvement of attorneys
throughout the drafting of expert reports guarantees that no report
will be submitted that is damaging to the hiring party’s interests.60
In fact, as legal counsel has an interest in winning the case, she will
likely exploit the diversity of technical approaches precisely to con-
vince the expert to use the one that best serves her client’s case.
This does not mean that every expert in every arbitration will
seek only to please her hiring party. In fact, a reputation for objectiv-
ity might make an expert a better choice than one who simply accom-
modates the party’s requirements. Moreover, most sets of arbitration
rules contain mechanisms aimed to address and minimize the risks
that come along with this apparently inherent lack of impartiality of
party-appointed expert witnesses. These include cross-examination,
questions by the tribunal, the duty of disclosure of conflict of inter-
ests, the possibility of submitting a joint report, expert conferencing,

making by providing relevant and independent evidence in their area of expertise.”);

Guy Elkington & Paul Taplin, Expert Evidence in Construction Disputes: Expert Wit-
ness Perspective, in THE GUIDE TO CONSTRUCTION ARBITRATION, supra note 17, at 236,
237 (“In most legal systems rules of evidence and codes of practice require that an
expert has an (overriding) duty to present independent and impartial opinion to a
tribunal . . . .”).
59. For example, in delay claims, there are many distinct approaches or method-
ologies that may be employed by experts and that may lead to different conclusions.
The difference in methodologies may include the Critical Path Analysis, As-planned v.
As-built, As-planned v. Impacted, or As-built v. But For. As a consequence, “it is likely
that the experts from the various parties will approach the task armed with a differ-
ent set of facts and approach the analysis from different—possible widely different—
theoretical bases”. JENKINS, supra note 50, at 220–25; see also Gideon E. Kamya-
Lukoda & Anthony J. Morgan, Role of Expert Witnesses in Construction Arbitration:
Delay and Disruption and Quantum Issues, in TRANSNATIONAL CONSTRUCTION ARBI-
TRATION: KEY THEMES IN THE RESOLUTION OF CONSTRUCTION DISPUTES 78, 83 (Renato
Nazzini ed., 2018).
60. See Mark Kantor, A Code of Conduct for Party-Appointed Experts in Interna-
tional Arbitration - Can One be Found?, 26 ARBITR. INT’L 323, 334 (2010). In Hunter’s
words, “[t]he party in question simply would not present the testimony to the tribunal
if the expert’s opinion was unfavourable to its case.” Hunter, supra note 16, at 1.
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66 Harvard Negotiation Law Review [Vol. 27:43

and a duty to disclose communications between counsel and party-

appointed experts.61 Among others, the International Bar Associa-
tion (“IBA”) Rules on the Taking of Evidence in International Arbi-
tration62 and the 2007 Chartered Institute of Arbitrators’ Protocol for
the Use of Party-Appointed Expert Witnesses in International Arbi-
tration63 contain specific provisions on this matter.
However, some commentators argue that full impartiality is not
possible with respect to party-appointed experts. In Klaus Sachs’s
words,
[a]s long as an expert is appointed and paid by a particular
party, there will always be an incentive for him to sympathize
with that party’s position. There will often be a reluctance to
cooperate with the expert appointed by the opposing party. And
counsel will always try to control the evidence submitted by
their expert and to prevent him from making statements which
might turn out to be unfavorable to the client.64
Thus, the extent to which these mechanisms generally satisfy
the interest in having an impartial assessment of technical issues is
not obvious. The question is whether the standard of impartiality ap-
plied to party-appointed experts remains reasonable in cases involv-
ing highly complex, outcome-proximate technical issues. In other
words, the fact that expert witnesses’ impartiality might never be
fully achieved through current mechanisms is generally something to
tolerate with respect to a particular piece of evidence that must be
assessed by an independent tribunal and incorporated into a broader
reasoning process. But when the product of the expert’s assessment
goes beyond the decision-maker’s epistemic competence and deter-
mines the outcome of the dispute, such a lack of impartiality—per-
ceived or real—should not be tolerated. Specifically, the standard of
independence and impartiality should not be any lower than the one

61. A brief reference to each one of the mentioned mechanisms can be found in
Nessi, supra note 35, at 88–96.
62. The IBA Rules require party-appointed experts to include in their report “a
statement of his or her independence from the Parties, their legal advisors and the
Arbitral Tribunal” (Rule 5.2.c) as well as an “affirmation of his or her genuine belief in
the opinions expressed in the Expert Report.” (Rule 5.2.g). IBA RULES ON THE TAKING
OF EVIDENCE IN INT’L ARB. Rule 5.2 (INT’L BAR ASS’N 2020).
63. Article 4 expressly requires the expert’s opinion to be impartial, objective,
unbiased and uninfluenced by the pressures of the dispute resolution process or by
any Party. RULES ON THE TAKING OF EVIDENCE IN INT’L ARB. art. 4 (CHARTERED INST.
OF ARBS. 2007).
64. Klaus Sachs & Nils Schmidt-Ahrendts, Protocol on Expert Teaming: A New
Approach to Expert Evidence, in ARBITRATION ADVOCACY IN CHANGING TIMES 135, 144
(Albert Jan van den Berg ed., 2011).
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Fall 2021] Rethinking the Structure of Construction Arbitration 67

applied to the arbitrators themselves and, when this is the case, the
mechanisms in place for experts naturally fail to ensure the fulfil-
ment of such a standard.

b. Submission of conflicting expert evidence

After each party has retained and worked with an expert to pro-
duce expert evidence, the nonexpert decision-maker usually faces two
(or more) expert reports that contradict each other. As some scholars
note, the prevailing practice of submitting conflicting expert evidence
on matters of great technical complexity is “[o]ne of the least satisfac-
tory features of modern international arbitrations . . . .”65 This is par-
ticularly true when the conflict arises from a genuine difference of
opinion between the experts (tailored or not to the appointing parties’
interests, but in any case possible for the reasons stated above), in
which case the tribunal will be unable to properly decide which one is
more accurate. For instance, Brewer’s analysis of the respondents’
brief in Daubert is helpful in describing this issue:
[W]hen evidence supporting contrary or contradictory proposi-
tions is supported by “grounds that are deemed good by the rele-
vant scientific, technical, or other specialized field,” then the
nonexpert judge or jury is to make the decision as to which of
those competing and well-supported claims is to be accepted for
purposes of the legal decision at hand. That is, on this brief’s
view and apparently on the view of the Daubert Court itself,

65. BLACKABY ET AL., supra note 48, at 396. Learned Hand’s description of this
phenomenon, even when written in the context of jury trial litigation, is particularly
illustrative here:
The trouble with all this is that it is setting the jury to decide, where doctors
disagree. The whole object of the expert is to tell the jury, not facts, as we
have seen, but general truths derived from his specialized experience. But
how can the jury judge between two statements each founded upon an expe-
rience confessedly foreign in kind to their own? It is just because they are
incompetent for such a task that the expert is necessary at all. Even where
two supposititious propositions are not in direct conflict, the real reconciling
grace which may lurk between them is not bestowed, save upon one familiar
with the whole line of experience to which they belong; and when the conflict
is direct and open, the absurdity of our present system is apparent. The truth
of either combatting proposition lies just in its validity as an inference from a
vast mass of experience, not usually in any great degree that of the witness,
certainly in no part that of the jury, as to the truth of which trained powers of
observation are quite essential, the result themselves of a life of technical
training. What hope have the jury, or any other layman, of a rational deci-
sion between two such conflicting statements each based upon such experi-
ence. If you would get at the truth in such cases, it must be through some one
competent to decide.
Hand, supra note 2, at 54–55.
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68 Harvard Negotiation Law Review [Vol. 27:43

when qualified epistemically competent experts disagree, the

decision as to who is correct is to be given by the judge to the
least epistemically competent institutional actor, the nonexpert
judge or jury. Again, we are driven to ask, what is being ex-
pected or demanded of the nonexpert legal reasoner in assessing
scientific testimony? The Daubert opinion and at least some
sources on which it relies seem to have it thus: When the evi-
dence is so weak that no reputable scientist in the field would
endorse it, prevent the nonexpert from hearing it (and from
hearing that no reputable expert would endorse it); but when
the best scientific theories and methods underdetermine the re-
sult, let the nonexpert decide who is correct. How can an episte-
mically responsible decision emerge from that rule?66
Solutions provided for this situation vary between civil and com-
mon law jurisdictions, although certain tools are increasingly preva-
lent in the practice of international arbitration, such as the use of
Terms of Reference for expert witnesses, joint expert reports and ex-
pert witness conferencing.

i. Civil law approach: Tribunal-appointed expert

In most civil law jurisdictions, expert evidence generally comes

in the form of tribunal-appointed experts.67 Therefore, when facing
two conflicting pieces of expert evidence, some civil law trained arbi-
trators may see appointing an additional neutral expert as a natural
solution.68 Even outside the domestic laws of civil law jurisdictions,
most national and international arbitration rules also contemplate
the possibility of having a tribunal-appointed expert.69 Although this

66. Brewer, supra note 13, at 1600.

67. Torsten Lörcher, Cultural Considerations in Advocacy: Continental Europe,
in GUIDE TO ADVOCACY, supra note 31, at 282, 285. As some scholars point out, the
preference for tribunal-appointed experts under civil law systems is given by the con-
ception of the experts as officers of the court. Michele Taruffo, Principles and Rules of
Transnational Civil Procedure: An Evidentiary Epistemology, 25 PENN STATE INT’L. L.
REV. 509, 517 (2006).
68. In Torsten Lörcher’s words, “[a]lthough international arbitration has devel-
oped its own particular rules, the civil law principles for litigation in national courts
may still influence the style in which both arbitrators and counsel with a civil law
background will conduct arbitral proceedings, namely if they and the parties in such
an arbitration share this background.” Lörcher, supra note 67, at 283.
69. Examples include Article 37 of the English 1996 Arbitration Act, Section 25 of
the Swedish Arbitration Act, Article 6 of the IBA Rules on Taking Evidence in Inter-
national Arbitration, Article 21 of the LCIA Rules, Article 25.4 of the ICC Arbitration
Rules, Article 26 of the UNCITRAL Model Law, Article 29 of the UNCITRAL Arbitra-
tion Rules, and Article 25 of the ICDR Rules. Sachs and Schmidt-Ahrendts, supra
note 64, at 136–37.
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Fall 2021] Rethinking the Structure of Construction Arbitration 69

solution is far less common in international arbitration, it is still

worth mentioning for the purposes of this analysis.
While this alternative reduces the risk of partiality, it leaves
other issues unresolved. One concern that comes mainly from a com-
mon law perspective, is that “the parties distrust the tribunal-ap-
pointed experts because they feel that they are unable to control the
manner in which what may be the most critical element in their case
will be presented.”70 Another issue that has been raised is the risk of
the tribunal-appointed expert rendering “a report despite a potential
lack of factual information. Undisputedly, the flow of factual informa-
tion between the party and the corresponding party-appointed expert
is usually much smoother than between a party and the tribunal-ap-
pointed expert.”71
A leading issue that arises with regard to tribunal-appointed ex-
perts is the extent to which, by relying on the expert’s conclusions,
the arbitrators unduly delegate their decision-making function to
persons other than the ones agreed upon by the parties to resolve
their dispute.72 In this sense, according to relevant caselaw and legal
doctrine, no improper delegation takes place when the parties are
duly informed about the expert’s tasks and make no objections;73
when the parties “recognize the polarity of party-appointed expert
views, and are given ample opportunity to comment on the tribunal
expert’s findings;”74 and when the tribunal does not simply take the
findings “at face value without giving them any consideration.”75
Finally, when an arbitral tribunal appoints additional experts
because two conflicting expert reports have been submitted, the cost-
effectiveness of the proceeding becomes a concern. The parties will
assume new costs (i.e., the tribunal-appointed expert’s fees) and lose

70. Id. at 140.

71. Id.
72. Voser and Bell, supra note 57, at 170. (“[P]arties and counsel regularly have
concerns when it comes to tribunal-appointed experts and sometimes fear that their
dispute is essentially decided by the tribunal-appointed expert rather than the arbi-
tral tribunal itself.”).
73. Luzon Hydro Corp. v. Transfield Phil. [2004] SGHC 204 (Sing.).
74. Giorgio Bernini, The Civil Law Approach to Discovery: A Comparative Over-
view of the Taking of Evidence in the Anglo-American and Continental Arbitration
Systems, in THE LEADING ARBITRATORS’ GUIDE TO INTERNATIONAL ARBITRATION, supra,
note 19 at 555, 843. Here, the authors refer to the CMS Gas Transmission Co. v.
Argentina, ICSID Case No. Arb/01/8, 44 ILM 1205 (2005) and El Paso Energy Int’l Co.
v. Argentina, ICSID Case No. Arb/03/15 (Sept. 22, 2014), cases.
75. Harris Bor, Expert evidence, in ARBITRATION IN ENGLAND WITH CHAPTERS ON
SCOTLAND AND IRELAND 503, 521 (Julian D.M. Lew, QC et al. eds., 2013) (citing Price
v. Carter [2010] EWHC 1451 (TCC) (Eng.)).
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70 Harvard Negotiation Law Review [Vol. 27:43

a significant amount of time (i.e., the time invested in preparing the

first reports while the arbitration will require additional time in or-
der for the new expert to educate herself in the facts and issues of the
dispute and to draft a new report).

ii. Common law approach: Witness conferencing

Common law parties are usually much more comfortable with ex-
perts they select than with experts appointed by a tribunal. This has
to do, in part, with the “nature and function of the expert in light of
the Anglo-American procedural system, [which] tends to place the
status and role of technical experts in the context of the parties’ ‘arse-
nal’ of evidence.”76 Party-appointed experts are still the general rule
in international arbitration.77
In cases where experts are appointed by the parties and conflict-
ing reports are rendered, the arbitral tribunal sometimes requires
the experts to confer and discuss the issues on which they agree and
those on which they differ. If no agreement is reached on one or more
points of the debate, the arbitral tribunal and the parties may agree
to have the experts, side by side, simultaneously cross-examined in a
single hearing. This is commonly known as witness conferencing, or
“hot tubbing.”78 According to Wolfgang Peter, when it comes to tech-
nical questions,
the simultaneous hearing flushes out most differences and
leaves only a few specific points of disagreement. But even in
respect to these remaining open points, the transcript of the
hearings generally show that they are well circumscribed, dif-
ferences of view of the parties are established with clarity, and
in most cases, the underlying assumptions which lead to these

76. Bernini, supra note 74, at 576. Another explanation regarding the preference
by common law jurisdictions of party-appointed experts, as opposed to the tribunal-
appointed expert model preferred in civil law jurisdictions, has to do with the tradeoff
between certainty and impartiality. Ereche Tuzzini has stated that civil law regula-
tions place the emphasis on impartiality over certainty, whereas the common law ex-
pert witness is designed in a way that allows a higher degree of certainty, but that
sacrifices the expert’s impartiality. Claudio A. Ereche Tuzzini, Prueba cientı́fica y per-
itaje en el Proyecto de Código Procesal Civil, in REFORMA PROCESAL CIVIL: PONENCIAS
PRESENTADAS EN EL PRIMER CONGRESO DE ESTUDIANTES DE DERECHO PROCESAL 103,
123 (Martı́n Vial Correa ed., 2014).
77. Nessi, supra note 35, at 72.
78. Wendy Kennedy Venoit, Making the Construction Hearing More Efficient:
Lessons Learned from International Arbitration, 65 DISP. RESOL. J. 104, 146, 107
(2010); Tim Chelmick & George Spalton, Organisation of the Proceedings in Construc-
tion Arbitrations: General Considerations and Special Issues, in THE GUIDE TO CON-
STRUCTION ARBITRATION, supra note 17, at 109–17, 115.
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Fall 2021] Rethinking the Structure of Construction Arbitration 71

diverging views have been made clear. In other words, the

ground for rendering the award has been well prepared.79
Moreover, the “virtues of expert conferencing claimed by its sup-
porters include that it embodies a more scientific ethos, it provides a
better environment for experts to communicate their opinions, it
reduces partisanship and the influence of lawyers, and it saves time,
money and resources.”80
Expert conferencing has its own flaws as well. For one, an agree-
ment regarding a critical issue in dispute between the party-ap-
pointed experts will sometimes require one expert to go against the
interests of the hiring party, which is unlikely to happen. Moreover,
each expert might “defend” her own assessment of the technical is-
sues, making the arbitrator’s task even more difficult and more a
matter of persuasion rather than a clarification of technical issues.
As Kantor points out, “[p]arties may engage experts who are good
actors, appearing impartial but in fact partisan. The process of select-
ing, educating, and paying a party-appointed expert creates an envi-
ronment that inherently puts pressure on the expert’s
independence.”81 Some arbitrators, referring to this practice, have
stated that “counsel should approach expert conferencing with cau-
tion. In my experience, the personalities of the experts can have a
significant impact during expert conferencing. An expert with a more
forceful personality can overshadow a more knowledgeable expert
who is more reserved or does not insist on having the last word.”82
The described scenario might turn even more complex for the ar-
bitral tribunal in cases in which the parties come from different legal
contexts. This is far from unusual in the context of international arbi-
trations on construction disputes. Burr’s explanation of this phenom-
enon is particularly enlightening:

79. Wolfgang Peter, Witness “Conferencing”, 18 ARB. INT. 47, 54 (2002).

80. Cairns and Cremades, supra note 8, at 8.
81. Kantor, supra note 60, at 374. This feigned impartiality does not cohere with
the tribunal’s interest in understanding “the technical aspects involved in the dis-
puted specialist area, and to receive honest opinions and advice from the experts, so
that they may decide the specialist issues in dispute fairly as between the parties. It
is not the function of the arbitral tribunal to decide the issues on which side has the
best advocate, or team of advocates.” Hunter, supra note 16, at 5.
82. David Roney, Cross-Examination of Experts, in THE GUIDE TO ADVOCACY,
supra note 31, at 100, 110. Such a risk is far from new. In 1947, Hammelmann had
already referred to this situation in the court litigation context as the “danger that,
among conflicting expert evidence, the Court may be induced to believe the expert
who has succeeded in putting forward his views in the most persuasive and plausible
manner.” Hammelmann, supra note 12, at 34.
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72 Harvard Negotiation Law Review [Vol. 27:43

In international arbitration, whenever the parties, their advo-

cates, or their experts, are from differing cultures (or some-
times, professional disciplines), there will be a further issue to
be considered. The difficulty is generally manifest in the man-
ner of adducing evidence from lay witnesses and from experts.
In some cultures the coaching of witnesses by the advocate both
before and during the period of giving evidence is not only not
frowned upon, but is considered to be a normal and advanta-
geous practice. In other cultures, it can amount to professional
misconduct on the part of the advocate, or result in the evidence
becoming inadmissible, or both. If the parties are not playing by
the same rules, then, without a tribunal-appointed expert, the
tribunal may be in some difficulty.83
While joint reports and expert conferencing may effectively help
the tribunal decide over conflicting expert evidence, it is not clear
that this is the case for overly complex issues that are, at the same
time, decisive for the case. Arguably, the effectiveness of these proce-
dures depends, to some extent, on the ability of the members of the
arbitral tribunal to measure and test the substance of the issues be-
ing discussed (which might also prevent them from being distracted
by the expert’s oral advocacy). In any case, they are structured over
the flawed assumption that the product of such a procedure is a piece
of evidence that will be incorporated in the tribunal’s reasoning and
not the decision of the case itself.

3. Conclusion: Current solutions are intrinsically inadequate

for critical and complex technical issues
While the aforementioned solutions have proven helpful to ad-
dressing some of the issues that arise in international arbitration,
they are intrinsically inadequate when it comes to achieving an effi-
cient and effective assessment of the critical technical issues that
often arise in construction disputes.84 At the core of this inadequacy
lies the fact that the arbitral tribunal remains unable to treat the
expert’s assessment as evidence in a way that is epistemically sound.
Indeed, as some authors recognize, these solutions
primarily focus on enhancing the rigor of the adversarial pro-
cess, appointing ‘independent’ experts, and improving ethical
transparency through the disclosure of potential conflicts of in-
terest. Although these practices may sharpen points of disagree-
ment and highlight flagrant biases, and the evaluation of expert

83. BURR, supra note 44, at 973.

84. To be clear, I am not critiquing the mentioned solutions in general terms, but
only for the disputes involving highly complex, outcome-proximate technical issues.
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Fall 2021] Rethinking the Structure of Construction Arbitration 73

evidence has generally improved over time, none of those prac-

tices assist the decision maker in engagement with the sub-
stance of that evidence.85
The main reason for such inadequacy is the failure to recognize
that expert assessments of highly complex, outcome-proximate tech-
nical issues are truly judgements and not evidence. Consequently,
the solution for technical issues will not come from enhancing the
specific rules and methodologies within the current structures.
Rather, the solution will come from questioning whether these struc-
tures are at their core coherent with the nature of the task that must
be undertaken to resolve the dispute.

IV. CHARACTERISTICS OF A COST-EFFECTIVE AND SATISFACTORY

ASSESSMENT OF TECHNICAL ISSUES IN CONSTRUCTION
DISPUTES

After describing other dispute resolution mechanisms, I discuss

the characteristics that better meet the underlying interests of the
relevant stakeholders. These characteristics are better suited to meet
these interest because they cohere with the nature of the assessment
of critical and complex technical issues in construction disputes. Such
characteristics are (1) the presence of the expert in the decision-mak-
ing body or arbitral tribunal, (2) the early determination of technical
issues that are relevant to resolve the dispute, and (3) inquisitorial
fact-finding powers on behalf of the expert member of the tribunal.
For that purpose, I will review four models that present these fea-
tures: (1) the World Trade Organization (“WTO”) Dispute Settlement
Mechanism, (2) Dispute Boards, (3) the Sachs Protocol, and (4) expert
arbitrators.

A. WTO panels
The dispute settlement system of the WTO contemplates a par-
ticularized approach to the adjudicator’s fact-finding authority, espe-
cially when it comes to technical issues that require expert
assessment. Indeed, article 13 of the WTO Understanding on Rules
and Procedures Governing the Settlement of Disputes (“DSU”) confers
specific fact-finding powers to its panels that are considered more in-
quisitorial86 than adversarial:

85. Swinehart, supra note 20, at 303.

86. Joost Pauwelyn, The Use of Experts in WTO Dispute Settlement, 51 INT’L
COMPAR. L.Q. 325, 364 (2002). It is important to note, however, that while the author
states that the inquisitorial aspect of the WTO panels is common to all international
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74 Harvard Negotiation Law Review [Vol. 27:43

Article 13. Right to Seek Information

1. Each panel shall have the right to seek information and tech-
nical advice from any individual or body which it deems appro-
priate. However, before a panel seeks such information or
advice from any individual or body within the jurisdiction of a
Member it shall inform the authorities of that Member. A Mem-
ber should respond promptly and fully to any request by a panel
for such information as the panel considers necessary and ap-
propriate. Confidential information which is provided shall not
be revealed without formal authorization from the individual,
body, or authorities of the Member providing the information.

2. Panels may seek information from any relevant source and

may consult experts to obtain their opinion on certain aspects of
the matter. With respect to a factual issue concerning a scien-
tific or other technical matter raised by a party to a dispute, a
panel may request an advisory report in writing from an expert
review group. Rules for the establishment of such a group and
its procedures are set forth in Appendix 4.87
Along with enabling the panel to have direct fact-finding powers,
the aforementioned provision “authorizes panels to seek information
and advice from experts and other relevant sources to help them to
understand and evaluate the evidence submitted and the arguments
made by the parties. This right is broad and comprehensive, and its
exercise is left to the discretion of the panel.”88

tribunals (as opposed to what happens in some common law jurisdictions), the inquis-
itorial role is justified by the fact that the disputing parties are generally states and
not individuals, which drastically increases the stakes when it comes to the panel not
having all the necessary information. Id. at 353.
87. Understanding on Rules and Procedures Governing the Settlement of Dis-
putes art. 13, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade
Organization, Annex 2, 1869 U.N.T.S. 401.
88. WORLD TRADE ORG., A HANDBOOK ON THE WTO DISPUTE SETTLEMENT SYSTEM
98 (2d ed. 2017). This discretionary power may not, of course, be used by the panel to
make the case for one of the parties or relieving the complainant from its burden of
proof. In fact, when deciding whether to exercise this fact-finding authority, the panel
must take into consideration factors such as: “(i) what information is needed to com-
plete the record; (ii) who is in possession of such information; (iii) what other reasona-
ble means might be used to procure that information; (iv) why the information has not
been produced; (v) whether it is fair to request the party in possession of the informa-
tion to submit it; and (vi) whether the information or evidence in question is likely to
be necessary to ensure due process and a proper adjudication of the relevant claim(s).”
Id.
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Fall 2021] Rethinking the Structure of Construction Arbitration 75

The utilization of panel-appointed experts, and reliance on ex-

pert evidence in general, has increased significantly over the last sev-
eral decades in WTO disputes,89 especially in those arising from the
Agreement on the Application of Sanitary and Phytosanitary Mea-
sures (“SPS Agreement”). Indeed, in almost every dispute involving
the SPS Agreement, panels have recurringly relied on the technical
advice of scientific experts and/or international organizations.90
Thus, the WTO model provides a template for satisfying some of
the underlying interests in complex construction disputes. The pres-
ence of technical expertise on the WTO panels, as well as the inquisi-
torial proceedings employed in their fact-finding activity, respond
precisely to the specificity of the disputes brought before them and to
the need to obtain an efficient and technically sound settlement.

B. Dispute Boards

The Dispute Boards model, developed for resolving construction

disputes, presents a useful tool for this analysis.91 Perhaps the most
distinctive characteristic of Dispute Boards is that they are consti-
tuted at the beginning of the construction project and remain present
during its entire execution, as opposed to arbitral tribunals, which
are appointed only once the dispute has already arisen. As many
commentators recognize, this

89. Swinehart, supra note 85, at 298–99 (“In the more than fifty years of the
multilateral trading system under the 1947 General Agreement on Trade and Tariffs
(GATT), only one panel requested an expert opinion out of approximately 300 dis-
putes, and in that instance did not rely on it. Early cases in the WTO also tended to
avoid reliance on expert evidence. Yet, today reliance on expert evidence has become a
standard practice in the WTO, which since 1994 has routinely relied on such evi-
dence. And WTO observers have called for more frequent use of experts in particular
areas, including economics.”).
90. Cherise Valles, Different Forms of Expert Involvement in WTO Dispute Settle-
ment Proceedings, 9 J. INT’L DISP. SETTLEMENT 367, 369 (2018). As Valles points out,
the SPS Agreement contains a specific disposition that complements the general rule
set forth in Article 13 of the DSU. Indeed, Article 11.2 of the SPS Agreement provides:
In a dispute under this Agreement involving scientific or technical issues, a
panel should seek advice from experts chosen by the panel in consultation
with the parties to the dispute. To this end, the panel may, when it deems
appropriate, establish an advisory technical experts group, or consult the rel-
evant international organizations, at the request of either party to the dis-
pute or on its own initiative.
91. For general reference, see Juan Eduardo Figueroa Valdés & William R. Schu-
bert, The Role of Dispute Boards in the Construction Industry, INT’L ARB. L. REV. 20,
55–68 (2017); Nicholas Gould & Christina Lockwood, Dispute Boards, in TRANSNA-
TIONAL CONSTRUCTION ARBITRATION: KEY THEMES IN THE RESOLUTION OF CONSTRUC-
TION DISPUTES 193–219 (Renato Nazzini ed., 2018); JENKINS, supra note 50, at
99–117.
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76 Harvard Negotiation Law Review [Vol. 27:43

enables the board members to monitor the project’s progress

and be available as soon as the seeds of a dispute are sown. The
early intervention of the [Dispute Boards] before parties become
entrenched in their positions may avoid the dispute altogether
or lead to an early resolution while the project continues.92
What is especially relevant for the current analysis is the way in
which Dispute Boards combine “technical expertise and legal profes-
sionals in a single decision-maker.”93 Indeed, regardless of the spe-
cific version of the Dispute Board,94 many of the key characteristics
discussed so far in this article are present: technical experts are part
of the decision-making body from the very beginning of the proceed-
ings; the Boards have the power to conduct an inquisitorial proceed-
ing; and they can also request documentation, evidence, and
arguments from the parties.95
However, the permanent nature of dispute boards might be a
downside when compared to arbitration proceedings. The arbitral tri-
bunal appointment once the dispute arises is an advantage. When
parties seek the tribunal, they will have a clear idea of what the is-
sues are and, therefore, what particular expertise is required from
the members of the tribunal.96

92. Gould and Lockwood, supra note 91, at 198–99.

93. Cairns and Cremades, supra note 8, at 4.
94. The most common forms that Dispute Boards may adopt are Dispute Review
Boards (“DRB”), Dispute Adjudication Boards (“DAB”) and, under the ICC Dispute
Board Rules, Combined Dispute Boards (“CDB”). A brief description of each modality
may be found in BURR, supra note 44, at 1051–52.
95. John W. Hinchey, Luis Prats & William Karl Wilburn, Construction Dispute
Resolution, in INTERNATIONAL CONSTRUCTION LAW: A GUIDE FOR CROSS-BORDER TRANS-
ACTIONS AND LEGAL DISPUTES 247, 262 (Wendy Kennedy Venoit et al. eds., 2009);
Figueroa, Valdés & Schubert, supra note 91, at 60–61. More specifically, as Jenkins
pointed out, “the dispute board may have the express power to:
- request clarification or additional information from either or both of the
parties;
- make such site visits and inspections as it considers appropriate;
- convene meetings upon reasonable notice to the parties at which both par-
ties shall be entitled to be present;
- appoint its own advisors to advise on matters of legal interpretation or ex-
pertise outside the area of expertise of each of the members on which the
parties are not agreed;
- open up, review and revise any decision, approval, recommendation or de-
termination made, notice or certificate given by the employer and/or the
employer’s engineer or representative; and
- make use of the specialist knowledge of each of the members.”
JENKINS, supra note 50, at 100–01.
96. Volker Mahnken, On Construction Adjudication, the ICC Dispute Board
Rules, and the Dispute Board Provisions of the 2017 FIDIC Conditions of Contracts, 5
MCGILL J. DISP. RESOL. 62, 81 (2018) (“[I]t is not easy to select [Dispute Boards] mem-
bers with the appropriate expertise at the beginning of a project, particularly in plant
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Fall 2021] Rethinking the Structure of Construction Arbitration 77

While the possibility of selecting the appropriate expert once the

technical issues have been determined, as is the case with ad-hoc dis-
pute resolution mechanisms (e.g., arbitration), is valuable, the Dis-
pute Boards system’s advantage lies in the integration of technical
and legal experts within the decision-making body, along with the
possibility of undertaking inquisitorial proceedings—both of which
have proven to be effective in construction disputes.

C. Sachs Protocol97
Sachs provides a comparative analysis of the advantages and dis-
advantages of party—and tribunal—appointed experts, along with a
description of the “new techniques” developed to address some of the
most frequent issues arising around party-appointed experts. These
techniques include pre-hearing meetings, witness conferencing or
“hot-tubbing,” and new codes of conduct for party appointed experts.
Ultimately, Sachs concludes that such “instruments have already
had and promise to continue having a significant and very positive
impact on the way international arbitration proceedings are con-
ducted.”98 However, he acknowledges that, “in some cases, these
methods are not always sufficient to ensure an efficient (measured in
terms of time and costs) and successful (measured in terms of clarity,
quality and objectivity of the expert’s finding before the tribunal) pro-
cess of taking expert evidence.”99
In response, Sachs proposes a valuable alternative to technical
assistance for the arbitral tribunal, thereby addressing the concerns

construction. At the commencement of the project, the parties are normally unaware
of the issues that will give rise to future conflicts. This makes it difficult to know
whether they should pick specialists in civil, process, mechanical, electrical, or cost
engineering, or a time-scheduling expert.”).
97. This model was presented more than a decade ago by Dr. Klaus Sachs, during
the 2010 ICCA Congress in Rio de Janeiro, and is based on considerations very
similar to the ones explained throughout this article (i.e., general pitfalls of both
tribunal- and party-appointed expert witnesses). Although Professor Sachs does not
inquire about the nature of the technical assessment of facts, he constructs his
proposal on the basis of a critical analysis on the way in which expert evidence is
produced in international arbitration. Sachs and Schmidt-Ahrendts, supra note 64.
98. Id. at 143. More specifically, Sachs explains that, “in particular, ‘pre-hearing
meetings’ and ‘witness conferencing’ with the opposing experts are useful in order to
(i) clarify technical and factual issues,
(ii) outline areas of agreement and disagreement,
(iii) focus on relevant points,
(iv) narrow down the differences between expert reports,
(v) encourage scientific debate and, as a consequence,
(vi) render the taking of expert evidence more time- and cost-efficient.”
Id. at 142–43.
99. Id. at 144.
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78 Harvard Negotiation Law Review [Vol. 27:43

related to tribunal-appointed experts and combining the advantages

of tribunal—and party—appointed experts.100 According to this
“Sachs Protocol”—which he calls “expert teaming”—the tribunal in-
vites the parties at an early stage of the proceeding to provide a list of
possible experts.101 From these lists, the tribunal appoints two ex-
perts, one from each list.102 Once the experts are appointed, the tri-
bunal meets with the expert team and the parties in order to
establish a protocol for the teams’ mission (i.e., terms of reference).103
Complying with the protocol, the expert team prepares a preliminary
joint report, which is later commented on by the tribunal and the par-
ties.104 Based on these comments, the team then submits a final joint
report to the tribunal and the parties.105 Finally, the members of the
team must be prepared to testify during an oral hearing and to be
questioned by the tribunal, the parties, their counsel, and
consultants.106
While the Sachs Protocol is considered a creative and useful con-
tribution to the field,107 important questions remain about its utility.
Sachs properly addresses the insufficiency of current methods to ad-
dress challenges associated with party-appointed experts. The ap-
pointment of the “expert team” from the beginning of the proceeding,
participation of the parties in the selection of the members of the
team, and the independence of the expert team are effective tools
Sachs’ framework incorporates. However, Dr. Sachs’ proposal still
presumes that the technical assessment of facts should be treated as
evidence, which may not be true for all cases—especially those in-
volving highly complex, outcome-proximate technical issues. Dr.
Sachs’ presumption is reflected in the fact that the “expert team” has
two members, each selected from one of the lists provided by the par-
ties. However, with no ruling third member of the “expert team,” the
adversarial scheme of party-appointed expert witnesses prevails, as
each party is still somehow “represented” by the expert whose name
was included in their list.

100. Id.
101. Id. at 144–45.
102. Id.at 145.
103. Id.
104. Id.
105. Id.
106. Id.
107. Nessi, supra note 35, at 89–91; Cairns and Cremades, supra note 8, at 10;
Kantor, supra note 60, at 336; Howard Rosen, How Useful Are Party-Appointed Ex-
perts in International Arbitration?, in 18 LEGITIMACY: MYTHS, REALITIES, CHALLENGES
379, 382–83 (Albert Jan van den Berg ed., 2015).
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Fall 2021] Rethinking the Structure of Construction Arbitration 79

Moreover, there are other unfortunate deficiencies with the pro-

tocol. As some have pointed out, the fact that the expert team is com-
posed of two members increases costs and carries the risk of an
impasse if the two experts do not agree.108 For instance, while the
experts are not paid directly by the party on whose list their name
was included, the experts have an incentive to advocate in favor of
that party, so as to be included in future expert lists. On the one
hand, this would certainly increase the probability of disagreement.
On the other hand, the experts might be incentivized to reach agree-
ments on every matter of their report, so as to bring a rapid finality to
the process. This poses a serious risk regarding the quality of the
technical assessment of the issues in dispute, a relevant aspect to the
stakeholders’ interest in having a satisfactory outcome. Indeed, the
tendency to achieve consensus among the members of the “expert
team” has the flipside of disincentivizing a thorough testing of each
other’s conclusions and can lead to a poor debate between the
experts.109
Additionally, Kantor critiques the Sachs Protocol for its prohibi-
tion of ex parte contacts between the individual members of the ex-
pert team and the parties that included them on their lists.110 Kantor
examines two possible interpretations of such a prohibition, with
each posing a sacrifice to some of the stakeholders’ key interests. In-
deed, according to Kantor, if such prohibition is absolute, a challenge
would arise as to the obtainment of complete information by the ex-
perts.111 An absolute prohibition therefore affects the fulfillment of
the expert’s interest in having all the necessary data to produce her
report and, consequently, affects the overall quality of the expert as-
sessment of technical issues. If, on the other hand, the ex parte con-
tacts prohibition is not understood as being absolute and, therefore,
after their appointment, members of the expert team proceed as
party-appointed expert witnesses, working closely with the party and
counsel who nominated them, their “independence” would be affected
in the same way as it would if they were selected by the party.112

108. Bor, supra note 75, at 509. In regard to this possible scenario, Sachs only
proposes that “[a]reas of disagreement on which the experts cannot reach a joint con-
clusion should be identified and, if necessary, the parties will be permitted to com-
ment or submit additional (expert) evidence on these.” Sachs and Schmidt-Ahrendts,
supra note 64, at 146.
109. Rosen, supra note 107, at 384.
110. Kantor, supra note 60, at 337–39.
111. Id. at 338.
112. Id. at 339.
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80 Harvard Negotiation Law Review [Vol. 27:43

The Sachs Protocol presents creative solutions to the challenges

examined and its own set of difficulties. The limitations of the Sachs
Protocol could be addressed by utilizing a single impartial expert that
would have direct contact with the parties to obtain the necessary
documents and information to perform their task instead of an expert
team whose members are nominated by each party.

D. Expert arbitrators
Finally, expert arbitrators present a final option. Indeed, the in-
herent flexibility of arbitration in terms of the persons who may be
chosen as arbitrators allows the parties or appointing authorities to
appoint nonlegal experts as members of the tribunal. Expert arbitra-
tors are in fact “commonly seen in engineering disputes where it is
advantageous for the parties to have an expert on the tribunal. The
arbitrator with specialist knowledge can advise on the weight of evi-
dence, ensure the tribunal’s award is sound in terms of technical is-
sues, and possibly shorten the proceedings.”113 In these cases, as
Jenkins recognizes, the expert arbitrator “will be able to liaise compe-
tently with the experts (if they are also required) and help guide the
tribunal in interpreting the experts’ opinions . . . .”114 An example of
this approach can be seen in the Indus Waters Kishenganga arbitra-
tion.115 The dispute arose in the context of India’s plan to build a
hydroelectric plant in part of Kashmir. The Indus Waters Treaty of
1960116 provides that the seven-member arbitral tribunal adjudicat-
ing the conflict would include a “highly qualified engineer,” selected
by the Rector of the Imperial College of Science and Technology in
London, alongside six lawyer arbitrators.117
In cases of expert arbitrators, the expert assessment of technical
issues comes directly from the tribunal, and the expertise permeates

113. Ruth Fenton, A Civil Matter for a Common Expert: How Should Parties and
Tribunals Use Experts in International Commercial Arbitration, 6 PEPPERDINE DISP.
RESOL. L. J. 279, 283 (2006).
114. JENKINS, supra note 50, at 141.
115. Pakistan v India, PCA Case No. 2011-01.
116. Indus Waters Treaty, Sep. 19, 1960, Annexure G, ¶ 4(b)(ii).
117. Parlett, supra note 36, at 446. The author also refers to another form of in-
cluding experts in the decision-making body that is relevant to this article: advisory
experts under the United Nations Law of the Sea Convention. Article 289 of the
treaty provides that, “[i]n any dispute involving scientific or technical matters, a court
or tribunal exercising jurisdiction under this section may, at the request of a party or
proprio motu, select in consultation with the parties no fewer than two scientific or
technical experts chosen preferably from the relevant list prepared in accordance with
Annex VIII, article 2, to sit with the court or tribunal but without the right to vote.”
United Nations Convention on the Law of the Sea, art. 289, Dec. 19, 1982.
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Fall 2021] Rethinking the Structure of Construction Arbitration 81

its activity throughout the arbitral proceeding. The proceeding incor-

porates the expert knowledge into the knowledge of the tribunal as a
whole, thereby achieving what Brewer identified as “the only way to
achieve epistemically responsible decision-making about expert evi-
dence[, which] is to give the task to judges with both scientific and
legal expertise.”118
However, this alternative also results in some sacrifices and
poses some challenges. The first and most conspicuous difficulty is
that having a non-legal expert appointed as a member of an arbitral
tribunal implies not having a lawyer as an arbitrator or, in the case of
arbitral panels, having one fewer lawyer. In a five-member arbitral
tribunal, this might not be a big sacrifice; but arbitral tribunals do
not typically have so many members. In the case of three-member
arbitral panels, where each party appoints a non-legal expert, the tri-
bunal will commonly be balanced through a legal chairman. How-
ever, the parties might face a real challenge when deciding whether
to use their only chance of appointing a member of the panel in choos-
ing a non-legal expert instead of a lawyer.119 Since all members of the
arbitral tribunal will need to discuss and eventually agree on the le-
gal solution of the dispute, only having one party-appointed arbitra-
tor who is a lawyer may give rise to concerns regarding the balance of
the tribunal.
Moreover, when the expert acts as an arbitrator, she is precluded
from using any knowledge or information that has not been submit-
ted by the parties in the form of briefs or evidence. This preclusion of
considering external knowledge may not be so problematic when ap-
plied to a nonexpert judge or lawyer arbitrator. But in the case of a
technical expert, whose presence and role in the tribunal is partly
justified by the possession of some specialist knowledge, prohibiting
or overly limiting120 the use of such knowledge might defeat its pur-
pose. It is crucial for the expert to preserve what is inherent to her

118. Brewer, supra note 13, at 1679, construed in Tony Ward, English Law’s Epis-
temology of Expert Testimony, 33 J.L. SOC’Y 572, 580 (2006).
119. Fenton, supra note 113, at 284. As pointed out by Fenton, the parties that
face such a dilemma might be worried about whether the tribunal “will have the re-
quired knowledge or be unbalanced.” Id.
120. For a technical expert acting as part of the arbitral tribunal to use her spe-
cialist knowledge in deciding a case, she must fulfill two duties: imparting such
knowledge to the rest of the arbitrators and providing the parties with an opportunity
to put their case in relation to such knowledge or information. The expert’s failure to
do so and reliance on her personal knowledge was considered, for example in Fox v.
P.G. Wellfair, as a “serious irregularity” and a breach of natural justice, justifying the
decision to set aside an award. Fenton, supra note 113, at 283–84.
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82 Harvard Negotiation Law Review [Vol. 27:43

nature even when she is a member of the tribunal, part of which con-
sists precisely in the ability to apply her specialized knowledge to the
particular issue on which technical assessment is required. This ap-
proach, for example, is the one adopted in dispute boards, where each
of the members of the board normally has express power to make use
of her specialized knowledge.121
Having an expert arbitrator achieves the objective of shifting the
assessment of complex and decisive technical issues from the parties’
control, as evidence, to the tribunal’s activity as adjudicators. How-
ever, this solution is still unsatisfactory, especially due to the practi-
cal challenges derived from the need to appoint an expert member of
the tribunal instead of a lawyer and the restrictions on the use of
specific technical knowledge.

V. DESIGN FOR IMPROVEMENT: FITTING THE FORUM TO THE FUSS122

IN COMPLEX CONSTRUCTION DISPUTES

In the present section, I propose a model wherein the technical

assessment comes from an expert who is agreed upon by the parties
in the same way the arbitrators are agreed upon and who becomes
part of the decision-making body but does not take part in the deci-
sion of the case (as a nonlegal expert arbitrator would). Instead, her
sole task is resolving the specific technical issue that justifies her
presence and providing her assessment to the tribunal. This model is
designed to address the issues raised in Sections II–IV and assumes
that the assessment of technical issues that are both highly complex
and determinative of the answer to the legal issue is not a matter of
evidence, but rather of adjudication.

A. General description of the model

A sole expert should be appointed alongside the arbitral tribunal
from the beginning of the process or as soon as the parties are able to
agree on (1) the need for an expert under this scheme and (2) the
subject matter of the technical issues to be addressed by the expert.
This will be the case where the parties agree that there is a specific
technical issue that may be critical to the decision of the case but that
it is too complex for the arbitral tribunal to assess substantively.

121. JENKINS, supra note 50, at 100–01.

122. This expression refers to the importance of ensuring the dispute settlement
mechanism is coherent with the subject matter of the conflicts that are resolved
through it. The expression is drawn from Frank E. A. Sander & Stephen B. Goldberg,
Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure,
10 NEGOT. J. 49 (1994).
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Fall 2021] Rethinking the Structure of Construction Arbitration 83

Such an expert will be a non-arbitrator member of the tribunal. She

will not participate in deciding the legal issues of the dispute and her
mission will be solely to render a decision on a specific technical as-
pect or aspects of the dispute, which will be binding for the nonexpert
arbitrators.
In particular, she will have the duty of (1) narrowing the rele-
vant questions involved in the technical issues of the case as early in
the proceeding as possible; (2) receiving and obtaining, through in-
quisitorial proceedings when needed, the documents and other evi-
dentiary means in order to perform her assessment; (3) maintaining
direct and constant communication with the non-expert members of
the tribunal, as well as sitting with them at the hearings; and (4)
performing the assessment of the technical issues of the case and pro-
viding both the analysis and the conclusions to the arbitrator/s, ei-
ther throughout the procedure or when the tribunal is drafting the
award. It will be the duty of the nonexpert decision-maker to (a) test
the procedural reliability of the expert’s assessment; and (b) make
sure that the analysis and conclusions provided by the expert actu-
ally fall within her scope and area of expertise.
The nature and mission of the expert within the proposed design
might be illustrated by reference to the expert jurymen and expert
assessors who were present in some English Courts:
Where the Court consists of a Judge and a special jury composed
of men with particular experience and knowledge (for instance,
merchants), the expert knowledge of the jurymen forms part of
the knowledge of the Court, since the jurymen are members of
the tribunal and take part in the deliberations and in the deci-
sion of the Court. The Rules of the Supreme Court (R. S. C.,
Order XXXVI, r. 2) make it possible in special circumstances to
call upon persons with particular knowledge and experience to
take a place on the bench as assistants of the Court. If such as-
sessors do not inform the tribunal, they cannot by definition be
instruments of proof; they become auxiliaries of the Court, ‘col-
laborators in the task of discovering the truth . . . .’123

123. Hammelmann, supra note 12, at 35 (internal citations omitted). Interest-

ingly, although the cited text is from 1947 and refers to a practice that, at that time,
did not seem to be very frequent anymore, some authors argue that many reforms
have implied returning to the described scheme. In particular, the solution contained
in the 1998 reform of the English Civil Procedure Rules would
lay in bringing expert evidence under the control of the judge. The Anglo-
Saxon tradition of each party presenting their experts was, from the perspec-
tive of this reform, the root of the problem in civil procedure. The reform
aimed at introducing the figure of a single joint expert, appointed by common
accord and coming under judicial control—thus making the evidentiary
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84 Harvard Negotiation Law Review [Vol. 27:43

What I propose is quite similar. The technical expert will not be

another arbitrator with whom to reach an agreement as to the legal
outcome of the case. In fact, if properly implemented, there should
not be any overlap or conflict between the technical expert and the
legal decision-maker, since the model itself is based on the distinction
of epistemic competences: Cuilibet in arte sua perito est creden-
dum.124 Only in that way will the expert’s knowledge become the
knowledge of the tribunal.

B. Technical expert as part of the arbitration tribunal

Perhaps the most important characteristic of the proposed model

is that the technical assessment of the issues in dispute will come
from an expert who will become part of the tribunal.125 The expert
would not be an arbitrator. Instead, after the arbitrator assesses the
expert’s findings in terms of reliability (by applying some test such as
that presented in Daubert) and being within the scope of her exper-
tise, the findings should not be subject to a substantive qualification
by the nonexpert arbitrator. The practical effect of this change is that
the nonexpert member or members of the tribunal may question the
process by which the expert reached her conclusions but shall not re-
visit the content of the conclusions themselves. Having an expert re-
porting to the arbitrator on technical matters would help the tribunal
avoid facing two contradictory expert reports on the same issue and
assist the tribunal in understanding the technical issues from the be-
ginning, thereby speeding up the arbitral proceeding.126 Additionally,
as with tribunal-appointed experts, this alternative “allows an arbi-
tral tribunal to be independently educated on issues and form the

phase more efficient. The aim was to secure greater impartiality, a reduction
in costs, increased efficiency, party equality, and the potential to facilitate
the settlement of disputes.
Cremades, supra note 37, at 192.
124. Any person skilled in his or her peculiar art or profession is to be believed
(i.e., when he or she speaks of matters connected with such art). See Cuilibet in arte
sua perito est credendum, BLACK’S LAW DICTIONARY (11th ed. 2019).
125. Such a proposal, at least with reference to court proceedings, is far from new.
Indeed, in 1860, Dr. Angus Smith had already concluded, after analyzing the various
positions that a “scientific man” (as he called it) may occupy within a court of law,
that an expert acting as an assessor who sits with the judge and assists him or her in
examining and obtaining scientific evidence, and is not questioned as a witness, does
not depart from his nature as a scientist and, therefore, would be in an appropriate
position to occupy. Smith, supra note 1, at 137–41.
126. Chelmick and Spalton, supra note 78, at 112.
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basis for its decision on a source of information untainted by party

bias.”127
Of course, this is precisely what many parties and practitioners,
especially from common law jurisdictions, are not comfortable with:
“the inclusion of a further, unendorsed member in their carefully se-
lected arbitral panel whose opinion and views expressed in private
conversations with the tribunal members, although not binding, are
likely to be highly influential on the decision-making process.”128
Such a concern, however, is not applicable to the schema dis-
cussed here, because the nature of the expert member of the tribunal
is different from that of an expert witness. Indeed, as the expert’s
assessment does not fall within the realm of evidence, but rather as
part of the decision-making process, the parties’ lack of control is
rather desirable. Because of that nature, the expert must be care-
fully selected and appointed by the parties, under the same standard
of impartiality as the arbitrators, precisely because she will decide an
issue that will be critical to the outcome of the case. Thus, no concern
on the tribunal “unduly” delegating its task shall be advanced, as the
parties will appoint (or agree on a process to appoint) the expert
knowing from the outset that she, and not the nonexpert members of
the tribunal, will settle the technical issues of the dispute.

C. Appointment of the technical expert

Since the expert reaches a conclusion on technical issues that de-
termine the resolution of the case itself, her appointment should fol-
low a similar—if not the same—mechanism as the appointment of
arbitrators. In this case, however, before attempting to agree on who
will sit as an expert with the arbitral tribunal, the parties must agree
(1) that the dispute contains technical issues that are both critical to
the outcome of the case and probably too complex for a legal expert to
properly assess (this can come from either party’s or even the tribu-
nal’s suggestion); and (2) what the general subject matter of the tech-
nical issues are and what specific type of expert is therefore required.
Provided that the previous agreements exist, the parties may
agree on the person or entity that will serve as expert. If no agree-
ment is reached, the Arbitral Tribunal or Arbitral Institution can act
as appointing authority. What is critical is that the expert complies
with both the field of expertise defined by the parties and the same
standard of impartiality as the arbitrators.

127. Kiefer and Cole, supra note 39, at 84.

128. JENKINS, supra note 50, at 201.
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D. Relationship with the tribunal

The expert’s relationship with the rest of the tribunal should be
constant, transparent, and active.129 That way, real collaboration can
be achieved by the technical and legal experts and, just as with the
expert arbitrator, the technical knowledge can become the knowledge
of the tribunal.
A classic question that arises with respect to the relationship be-
tween an expert and the tribunal is whether the expert’s conclusions
are binding for the tribunal or not. In accordance with this article’s
analysis, the conclusion of the expert’s assessment of the technical
issues that meet the requirements of criticality and complexity dis-
cussed above should be binding for the arbitrator if the expert’s anal-
ysis is procedurally reliable and she operates within the scope of her
expertise and what was previously determined.

E. Relationship with the parties

The communication between the parties and the expert should be
limited to the relevant technical issues of the case. This relationship
should also be transparent and ensure that both parties are informed
of the expert’s activity and receive equal treatment from her. When it
comes to the expert’s fact-finding task, for the model to achieve effi-
ciency and effectiveness, she should have the power to undertake in-
quisitorial proceedings.130 Once the technical issues are determined,

129. Among other benefits, such a continuous dialogue would avoid the situation
described by Mereminskaya and Landeros:
[C]onstruction experts are, by definition, non-lawyers and have no ability to
decide legal issues incidental [to] their conclusions. Evidently, on many occa-
sions, in order to establish the facts, the experts need to interpret the con-
tract and related documents. As a result, they are frequently accused of
making decisions on legal aspects that fall under the tribunal’s jurisdiction.
This concern is rather easily addressed by arbitral tribunals, given that they
are not bound by the conclusions of the expert report and are free to amend
their decisions that are of a legal nature.

However, opposite challenging situations may arise when the tribunal-ap-

pointed experts find themselves forced to consider issues that are outside of
their technical expertise and would require[ ] the tribunal’s guidance to ap-
proach them. Should the tribunal decide to adopt a distant stance, avoiding
contact with the expert, this could have complications for the expert’s work.
Mereminskaya and Landeros, supra note 22, at 10. Consequently, the best way to
avoid those situations, from my perspective, is that the expert maintains a constant
dialogue with the tribunal in order to manage and resolve the dispute in the most
effective way.
130. Interestingly, current international arbitration rules do permit tribunal-ap-
pointed experts to undertake inquisitorial proceedings in the process of fulfilling their
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Fall 2021] Rethinking the Structure of Construction Arbitration 87

which should happen at the very beginning of the arbitration, the

expert will probably know better than anyone what questions to ask,
what documents to request, and the individual who would possess
such relevant documents.
One objection to this scheme would be that, by shifting the “con-
trol” over the technical assessment of facts from the parties (i.e.,
through their expert witnesses) to the tribunal (i.e., through the ex-
pert member of the tribunal), the parties would lack the technical
assistance that might be critical in their relationship with the expert.
This fear, however, would be merely theoretical for two main reasons.
First, parties to construction disputes, which are companies that op-
erate in the construction industry, almost always retain personnel
who are dedicated to the technical aspects of the project that are cen-
tral to the dispute. Such personnel may play a key role in responding
to the expert’s requests for information and preparing the corre-
sponding party’s case from a technical perspective. Second, as the
ICC Commission on Arbitration and ADR recognizes, “[i]t is now com-
mon in international construction arbitrations for parties to use ex-
perts as consultants (quantity surveyors, claims consultants, etc.)
from a very early stage in the preparation of claims. Such consultants
often provide expert knowledge in certain aspects of the dispute, such
as programming, quantification or special areas of engineering.”131
These experts are different from those who act as expert witnesses,

task. Specifically, article 6, subsection 3, of the IBA Rules on the Taking of Evidence
in International Arbitration provides:
Subject to the provisions of Article 9.2, the Tribunal-Appointed Expert may
request a Party to provide any information or to provide access to any Docu-
ments, goods, samples, property, machinery, systems, processes or site for
inspection, to the extent relevant to the case and material to its outcome. The
Parties and their representatives shall have the right to receive any such
information and to attend any such inspection. Any disagreement between a
Tribunal-Appointed Expert and a Party as to the relevance, materiality or
appropriateness of such a request shall be decided by the Arbitral Tribunal,
in the manner provided in Articles 3.5 through 3.8. The Tribunal-Appointed
Expert shall record in the Expert Report any non-compliance by a Party with
an appropriate request or decision by the Arbitral Tribunal and shall de-
scribe its effects on the determination of the specific issue.
IBA RULES ON THE TAKING OF EVIDENCE IN INT’L ARB. Rule 6(3) (INT’L BAR ASS’N
2020).
131. ICC COMMISSION, supra note 46, at 22. Judge Learned Hand, who also pro-
posed transferring the technical assessment of the issues in dispute to an expert advi-
sor who sits with the tribunal, recognized that “[e]ither side might call all the experts
that money could procure or diligence discover, and put hypothetical questions for
them to answer till the end of time. The right of cross-examination could be exercised
without limitation. Only the difference would be that the final statement of what was
true would be from the assisting tribunal.” Hand, supra note 2, at 56.
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88 Harvard Negotiation Law Review [Vol. 27:43

since their purpose is not presenting “objective” evidence to the arbi-

trators but rather to directly aid the party in its preparation for the
dispute.

F. Timing of expert member appointment and scope of her

assessment
This question might be interpreted both from a temporal per-
spective and from a pertinence or appropriateness point of view.
As to the first, the active presence of the expert member of the
tribunal from the beginning of the arbitration might be crucial to
achieving cost-effectiveness. Indeed, one of the main principles that
underlie the ICC’s “Techniques for Controlling Time and Costs in Ar-
bitration” report is that “the arbitral tribunal should work proac-
tively with the parties to manage the procedure from the outset of the
case.”132 This translates, among other improvements, into determin-
ing the central issues of the dispute from the beginning of the
proceeding.
The same can be said about technical issues in construction dis-
putes. Great amounts of time and effort are invested into producing
all-encompassing expert reports, most of which will be useless once
the critical technical issues are determined. The problem is that, usu-
ally, such a determination happens extremely late in the proceeding.
In this sense, a proactive expert on the side of the tribunal might
reduce costs dramatically by narrowing from the outset of the arbi-
tration which technical facts will have to be proved by the parties in
order to resolve the dispute.
Likewise, once a determination has been made in terms of the
pertinence of having the expert as part of the arbitral tribunal, she
must be appointed immediately. In accordance with my main argu-
ments, the “test” to provide for the presence of the expert within the
tribunal requires fulfilling two conditions. One or more of the techni-
cal issues involved in the dispute must be (1) too complex for the arbi-
tral tribunal to assess substantively and (2) determinative of the
outcome of the legal dispute itself. This could be either agreed upon
by the parties and the arbitral tribunal or ordered by the tribunal at
a party’s request.
Equally important will be to make sure that the expert limits her
assessment to the precise issue that justifies her presence in the pro-
ceeding. As Brewer explains, it will be the tribunal’s task to make

132. Christopher Newmark, Controlling Time and Costs in Arbitration, in THE

LEADING ARBITRATORS’ GUIDE TO INTERNATIONAL ARBITRATION, supra, note 19, at 493.
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Fall 2021] Rethinking the Structure of Construction Arbitration 89

sure that the expert stays within her scope of epistemic competence
in order to rationally defer to her conclusions:
But there is also good reason to believe that epistemic deference,
and, concomitantly, epistemic authority, is a matter of degree,
not an all-or-nothing relationship. For one thing, Hart himself
acknowledges that, when B treats A as an epistemic authority,
B’s deference extends only so far as B recognizes A to be speak-
ing within the subject area of A’s expertise. Thus, even in para-
digmatic cases of epistemic deference, the nonexpert must police
the epistemic boundaries between assertions by A that are
within what B recognizes to be the zone of A’s expertise and as-
sertions by A that are not within that zone. These borderlines
will inevitably be fuzzy. For example, where exactly does the ep-
istemic authority of a physicist end when he is testifying to the
nonexpert about the advisability of nuclear energy? Not exactly
anywhere. Even if such an expert is testifying as an ‘instrumen-
tally rational’ expert, one who is using his expert knowledge to
advise the nonexpert about how best to achieve goals the nonex-
pert has chosen, the nonexpert must be ever vigilant to keep the
expert within his proper epistemic domain. The price of rational
deference is eternal vigilance.133
In conclusion, the expert member of the tribunal should be ap-
pointed as soon as the arbitral tribunal determines the parties agree
that a highly complex, outcome-proximate technical issue exists in
the dispute; and the expert member should limit her assessment to
that precise issue.

G. Predicted benefits of implementing the proposed model

While many of the potential gains of the proposed design have

been covered by now, this new scheme will better serve the interests
of the relevant stakeholders, specifically from the perspective of the
selected evaluation criteria: cost-effectiveness and satisfaction with
the outcome.
As to cost-effectiveness, the presence of an expert within the ar-
bitral tribunal might improve the current situation at least in the
following respects:
1. The overall cost of expert fees will decrease by having only
one expert instead of two and, in some cases, even three.
2. A significant amount of time will be saved by:
a. Eliminating pre-hearing or joint expert conferences;

133. Brewer, supra note 13, at 1586–87.

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90 Harvard Negotiation Law Review [Vol. 27:43

b. Eliminating the costs arising from the revision of expert

reports by each party;
c. Narrowing the technical issues from the beginning of the
proceeding and devoting time only to those relevant to
the dispute;
d. Eliminating the time and efforts that the nonexpert arbi-
tral tribunal would otherwise need to devote to dealing
with conflicting expert evidence.

As to the stakeholders’ satisfaction with the outcome, I predict that

the new model for assessing certain technical issues within construc-
tion arbitration might allow the following improvements:
1. The assessment will be performed by a person who has the
necessary epistemic competence and, at the same time, is
part of the decision-making body;134
2. Such an assessment will be performed in an objective and
impartial way;
3. It will address the technical issues that are relevant to the
case without expanding into topics that are either outside
the expert’s competence or not relevant to the resolution of
the dispute; and
4. Given the inquisitorial powers of the expert and her partici-
pation from the beginning of the proceeding, the information
on which the technical assessment will be performed will ar-
guably be more complete and more accurate than it is under
current models, as the information provided to her will not
be subject to any filtering by an interested party (as is the
case with party-appointed experts) and will be available from
the outset (as opposed to what happens to tribunal-appointed
experts, who usually enter the proceeding in a later stage).

H. Possible challenges of the proposed model

At least from a theoretical perspective, the supposed singularity
of the expert member and the parties’ decreased control may seem to
be problems of the proposed design.

134. Id. at 1677 (“If legal systems are to endorse and aspire to satisfy the intellec-
tual due process norms (and other related rule-of-law norms), they would be well ad-
vised to move toward a ‘two-hat’ model of legal decision-making in areas to which
scientific results are rationally pertinent. On this model, the system seeks to ensure
that one and the same decisionmaker has both legal legitimacy (by being duly elected
or appointed by a legitimate elective or appointing authority) and epistemic compe-
tence with the basic formal tools of scientific analysis.”).
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The first objection is that the proposed model seems to be con-

structed on the assumption that only one type of expert will be quali-
fied to assess all the technical issues in dispute, despite the fact that
most construction arbitrations require not just one, but several types
of experts.135 In such cases, an individual expert will be of little use
with respect to the issues that fall outside her specific area of exper-
tise. Moreover, if many experts are appointed in order to avoid that
situation, the value created by having a single individual (less mone-
tary cost and a unitary methodology or approach to the technical is-
sues) might then be minimized.
However, such concern is only theoretical. First, the proposed ex-
pert will only be present when there is an issue that satisfies the two
conditions mentioned above—complexity and logical proximity to le-
gal issues—and, therefore, insofar as the rest of the technical issues
do not reach that threshold, they will continue to be treated as evi-
dence. Second, even when there is more than one technical issue that
meets the criteria articulated above, it will still be more efficient and
effective to have one expert sitting with the tribunal for each of those
issues, rather than having several expert witnesses, conferencing
hearings, and associated proceedings. Finally, the fact that there
would be more than one expert should also be irrelevant to their rea-
soning processes and conclusions, since each expert will limit their
work to the issues that fall within their respective area of expertise.
Another objection is that stripping the parties of the control over
expert evidence might have a significant impact on the outcome of
their case, thereby decreasing their level of satisfaction with the pro-
cess. This would be contrary to the whole purpose of the new de-
sign.136 The answer to this question lies within the first question of
this Article: is the assessment of technical issues that are overly com-
plex and logically too close to the legal issue really evidence? Depriv-
ing the parties of the freedom to determine when and how to present
their evidence is certainly not desirable. However, I conclude that

135. John Uff, Arbitrating International Construction Disputes, in THE LEADING

ARBITRATORS’ GUIDE TO INTERNATIONAL ARBITRATION, supra note 19, at 1011, 1016–17
(“Most disputes arising from the construction process concern matters either of qual-
ity (defects or fitness for purpose) time issues (claims for extension and consequences
of delay) or issues of cost (payment of the contract sum, extras and damages claimed
by either party). Each type of dispute gives rise to different types of issue, different
types of expertise and different requirements for factual evidence.”).
136. Indeed, under Dispute Systems Design methodology, one of the metrics uti-
lized to evaluate a dispute resolution mechanism is the user’s satisfaction with the
process, which is determined in part by the “view[ ] that they have more control over
their destiny when dealing with disputes and more active involvement in resolving
them.” COSTANTINO AND MERCHANT, supra note 38, at 174.
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such assessment is not evidence and therefore does not belong in the
full spectrum of the parties’ control. In other words, the fact that
there is so much party control over a type of “evidence” that the non-
expert arbitrators will have limited space to assess in substance and
that will, in any event, be determinative for the outcome of the case,
is the real anomaly.