Instructing an HSE Expert
in Arbitration
How Karim Ali works with counsel on international arbitrations, from the first conflict check to the hearing. Reports are prepared to meet the IBA Rules on the Taking of Evidence, the CIArb Protocol for party-appointed experts, or whatever the tribunal's procedural orders require.
Evidence the Tribunal Can Rely On
A party-appointed expert is chosen and paid by one side, but the evidence is only useful if the tribunal trusts it. Tribunals look for reports that set out the instructions, the facts relied on, the method and the reasoning, and that deal fairly with evidence that does not support the instructing party.
Karim prepares his reports on that basis. In Australian courts, experts must comply with a code of conduct and owe an overriding duty to the court. That discipline, applied across more than 150 expert reports, carries straight across to arbitration.
Under Article 5 of the IBA Rules, a party-appointed expert report must include, among other things, a statement of independence, a description of the instructions, the facts relied on, the methods and evidence used, an affirmation of genuine belief in the opinions, and the expert's signature, date and place.
Questions Counsel Usually Ask
- Is the expert independent of the parties, counsel and tribunal?
- Is the opinion sought within the expert's field?
- Will the report meet the procedural order and the applicable rules?
- Can the expert meet the timetable, including reply rounds?
- How will the expert hold up in cross-examination and witness conferencing?
- Can the expert attend the hearing in person or remotely?
How an Engagement Runs
Each stage is agreed with counsel and follows the procedural timetable.
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Conflict Check
Before any documents are shared, Karim checks for relationships with the parties, counsel, the tribunal and other experts, and discloses anything that should be disclosed.
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Scope and Instructions
Agreement on the questions to be answered, the documents to be provided, the timetable and the fee estimate. Instructions are recorded in writing and described in the report.
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Review and Analysis
Review of the record, requests for further documents where needed and, if it would help, a site visit.
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Expert Report
An independent report setting out the facts relied on, the method, the analysis and the opinions, with each opinion traced to the evidence.
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Reply and Joint Statement
A response to the opposing expert's report and, where ordered, a meeting of experts to record the agreed issues, the disputed issues and the reasons.
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Hearing
Oral evidence, including cross-examination and witness conferencing, in person or by video link.
Working Across Borders
International matters raise practical questions that are best settled at the start of the engagement.
Sydney is two to three hours ahead of Singapore and Hong Kong, so working sessions with counsel in Asia fit within normal business hours. Calls with Europe and the Middle East are arranged in the Sydney afternoon or evening.
The IBA Rules allow the tribunal to order a remote hearing, with a protocol covering technology, time zones and document handling. Karim is set up for remote testimony and travels where an in-person hearing is ordered.
Reports are written in English. Where key documents are in another language, certified or agreed translations are used and the report identifies them.
Karim identifies the health and safety laws and standards that applied where the work was done, relying on counsel or local legal experts for questions of law.
Documents are held securely and used only for the engagement, in line with the confidentiality obligations of the arbitration and the instructions.
A fee estimate and engagement terms are provided once the scope is clear. See fees and engagement.
Joint Statements and Witness Conferencing
Tribunals increasingly ask experts in the same discipline to meet before the hearing and to give evidence together.
The CIArb Protocol provides for experts to meet before their reports are exchanged and to prepare a joint statement of agreed and disputed issues. The IBA Rules allow the tribunal to order experts to meet and confer, and to question witnesses together, commonly called witness conferencing or hot-tubbing. Karim approaches these sessions by:
- Narrowing the issues genuinely in dispute
- Conceding points where the evidence requires it
- Explaining the reasons for any disagreement clearly
- Answering the tribunal's questions directly
Rules and Proceedings
Reports can be prepared for proceedings under the rules of the main arbitral institutions, for ad hoc arbitration and for other forms of dispute resolution. See the international disputes overview and expert conferences.
- ICC, SIAC, HKIAC, LCIA and ACICA arbitration
- Ad hoc arbitration under the UNCITRAL Arbitration Rules
- FIDIC Dispute Avoidance and Adjudication Boards
- Expert determination and mediation
- Court proceedings where independent safety evidence is needed
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What should we send for a conflict check?
The names of the parties and their related companies, counsel on both sides, the tribunal members if appointed, any other experts and a one-line description of the project. No confidential documents are needed at this stage.
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Can you work to a tight procedural timetable?
Karim will tell you at the outset whether the timetable is achievable for the scope. If it is not, he will say so rather than accept an instruction he cannot deliver properly.
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Will you help draft our submissions?
No. The expert's role is limited to independent opinion evidence. Karim will explain his analysis to counsel and answer their questions, but he does not act as an advocate or draft submissions.
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Do your reports include the CIArb Protocol declaration?
Yes, where the Protocol applies. The report includes the declaration in the form the Protocol sets out, and any specific requirements in the procedural order are also followed.
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Can you be appointed by the tribunal instead of a party?
Yes. Karim can act as a tribunal-appointed expert or as a single joint expert where the parties and the tribunal prefer that approach.
Instruct an Independent HSE Expert
Email Karim at Karim@safetydeeds.com with the parties for a conflict check, the issues and the procedural timetable.