Expertise Contributing to Conflict Solutions

Abstract

The very important role of an expert and his expertise are discussed in Chap. 7.

In many court-cases it has been the expert who decided on the outcome of the litigation respectively of the arbitration. Judges choose to nominate an expert, when they are unable to solve important special (technical, medical, biological etc.) matters of the case themselves and it is left to the expert to analyse the non-legal details and to present his findings to the court. The court, of course, has to be convinced on the validity of the expertise, taking into account the arguments against or in favour of the findings of the expert.

Experts are used in Court or Arbitration cases to assist the judges – they can also be used by the parties in their attempt to settle their disagreement or conflict before a court or arbitration case is started (see Sect. 6.3). At court there are experts used formany areas, such as technical, medical, legal, biological, economic, consumer goods and other areas. In this book we shall only look at technical expertise, since this area is the one that plays a predominant role in legal proceedings of international projects.

The fields, in which the expert might intervene are e.g.:

• technical assessment of machinery and/or processes

• assessment of foundations, construction, quality of buildings

• testing the quality of products

• analysis of the conformity and performance of industrial plants

• investigation of damages and defects of plants, machinery, material and resources

• delay investigation

• analysis of the extra costs claimed

In Sect. 7.1 advice will be given on how to influence the choice of the expert, when selected by the Court. It is always the Court who names the expert although the parties may make suggestions to the Court.

Section 7.2 will treat the potential intervention of an expert during pre-arbitral or soft resolution methods. It is always advisable to try to solve litigation by using an independent expert who can mediate between the parties.

Section 7.3 will show how the expert intervenes, once he has been nominated by the parties or the Court. Advice will be given, what should be done and what shouldnot be done by a party in order to come out successfully in an expertise.

If the outcome of an expertise is not successful for the party, what can be done in order to reject an expert and thus to have rejected the expertise by the Court? Such questions will be treated in Sect. 7.4.

The cost of an expertise will be treated in Sect. 7.5 and in Sect. 7.8 we discuss Case Studies and put forward questions to students, on the basis of which they can check,whether they have well “digested” the text of this Chap. 7.