In complex matters, particularly those involving construction, by Patricia D. Galloway

Transcription

1 by Patricia D. Galloway A look at the rules pertaining to tribunal experts, and methods of using of experts in arbitration to streamline and narrow the issues and present expert testimony more effectively. Dr. Patricia D. Galloway is the CEO of Pegasus Global Holdings, Inc. and serves on the Board of Directors of the American Arbitration Association (AAA). She chairs the AAA s National Construction Dispute Resolution Committee and is an arbitrator on the AAA Large, Complex Case Panel for construction and international cases. She serves on several Independent Expert Review Panels for major transportation projects and is a member of the Dispute Review Board Foundation. Additional biographical information is available at In complex matters, particularly those involving construction, one of the costs almost always incurred by the parties is expert evidence and testimony. 1 How expert evidence and testimony is managed can have a direct impact on the cost and length of the arbitration process. Before considering how to achieve these savings, one should first ask why experts are used. The purpose of expert reports and testimony is to assist the arbitration panel s deliberations and specifically facilitate the panel s understanding of the technical issues. To be of real assistance, experts must be independent, objective and not have any interest in the outcome of the arbitration. Reprinted with permission from the Dispute Resolution Journal, vol. 67, no. 3 (August-October 2012), a publication of the American Arbitration Association, 1633 Broadway, New York, NY , ,

2 This article discusses the arbitration rules concerning the arbitrator s obligation to conduct the proceedings in an efficient and cost-effective manner, the rules pertaining to the use of tribunal experts, and methods of using experts in arbitration to streamline and narrow the issues and present expert testimony more effectively and thus save time. Arbitration Rules and Case Management The established arbitration institutions have rules and procedures in place that give arbitrators wide discretion in the conduct of arbitration proceedings and encourage them (as well as the parties) to conduct the arbitration process in a manner that is cost-effective and efficient. For example, Rule R-32(2) of the American Arbi - tration Association (AAA) Construction Industry Arbi - tration Rules provides: The arbitrator, exercising his or her discretion, shall conduct the proceedings with a view toward expediting the resolution of the dispute. Similarly, Rule R-23, which deals with the preliminary management hearing, authorizes the arbitrator to issue an agenda in advance of that hearing outlining the scope of the hearing in an effort to efficiently manage the process and eliminate superfluous is - sues. 2 In like manner, Rule L-4 of the Procedures for Large, Complex Construction Dis putes lists matters that shall be considered at the preliminary management hearing, ending with such other items that may facilitate the efficient and cost effective management of the arbitration. 3 The International Arbitration Rules of the International Centre for Dispute Resolution (ICDR) 4 similarly provide in Article 16(1): Sub - ject to these rules, the tribunal may conduct the arbitration in whatever manner it considers appropriate. It goes on to say in Article 16(2): The tribunal, exercising its discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute. It also provides that the tribunal may conduct a preparatory conference with the parties for the purpose of organizing, scheduling and agreeing to procedures to expedite the subsequent proceedings. All of these rules give the panel flexibility in The arbitration rules of most arbitration institutions only focus on the ap pointment of a tribunal-appointed expert, a practice traditionally seen in international arbitration in civil law jurisdictions. handling the proceeding, but the overriding goal is efficiency and lower costs. The UNCITRAL 5 Arbitra tion Rules, on which the ICDR international rules were based, provides in Article 17: Subject to these Rules, the arbitral tribunal may conduct the arbitration in such a manner as it considers ap propriate. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and ex pense and to provide a fair and efficient process for re solving the parties dispute. 6 This article similarly grants the arbitrator very open-end ed authority to conduct the arbitration and emphasizes doing so in a way that encourages efficiency. Both this rule and the ICDR rules specifically state that the arbitrator has discretion as to how to most effectively manage the arbitration process. This approach is echoed in the International Bar Asso - ciation (IBA) Rules on the Tak ing of Evidence in Inter - national Arbitration (IBA Evi - dence Rules), which states: The consultation on evidentiary issues may address the scope, timing and manner of the taking of evidence, including: the promotion of efficiency, economy and conservation of resources in connection with the taking of evidence. 7 All of these rules stress the importance of efficiency in arbitration and how that allows for time and money to be saved. Arbitration Rules and Experts Next we turn to using expert evidence in arbitration. There are two kinds of experts: those appointed by the tribunal and those appointed by the parties. Table I on page 31 summarizes the expert-related provisions in various institutional arbitration rules. Tribunal-Appointed Experts. The arbitration rules of most arbitration institutions only focus on the ap pointment of a tribunal-appointed expert, a practice traditionally seen in international arbitration in civil law jurisdictions. Gen - erally, the practice involves the tribunal selecting one or more independent and impartial experts to produce an expert report on issues identified 2 A U G U S T / O C T O B E R

3 by the panel after consulting with the parties. Most arbitration rules also generally allow the parties to question the tribunal s expert at the evidentiary hearing. 8 The UNCITRAL rules differ from other sets of international rules in that they: (1) expressly re - quire experts terms of reference, 9 and (2) give the parties the opportunity to express in writing their opinion on the tribunal expert s report. In addition, they provide that at the evidentiary hearing any party may present expert witnesses in order to testify on the points at issue. 10 The ICDR rules follow the UNCITRAL rules in this respect. The wording used by UNCITRAL is almost verbatim in Article 22 of the ICDR rules. 10 The high level of uniformity shown in this procedure between UNCITRAL and the AAA suggests this is the de facto standard industry-wide. That tribunal experts are a widely accepted practice is supported by Article 6 of the IBA Evidence Rules, which states: The Arbitral Tribunal, after consulting with the Par ties, may appoint one or more independent Tribunal- Appointed Experts to report to it on specific issues designated by the Arbitral Tribunal. This provision also calls for the tribunal to establish terms of reference for the expert s report after consulting with the parties. Article 6 is more detailed than the rules discussed above. For example, it states that the tribunal-appointed expert shall, before accepting appointment, submit to the tribunal and to the parties a description of his or her qualifications and a statement of his or her independence. It also authorizes the tribunal-appointed ex pert to request a party to provide information or access to the extent relevant to the case and material to its outcome. In addition, it details what should be in the expert s report. An expert report ad dressing issues that the tribunal has identified can facilitate the tribunal s deliberations, which can make the hearing more efficient. It can also serve as a basis for the tribunal s award. In addition, a tribunal expert that has the joint approval of the parties will greatly decrease the chances that the award will be challenged later in the proceedings. One way to elicit the parties agreement to the tribunal s expert is to have each party separately tender a list of acceptable experts to the tribunal. Or, the tribunal could give the parties a list of candidates for the position of expert and ask them to comments on the candidates. In addition, the tribunal could ask the parties to provide a list of qualifications the expert witness should have. That list should include substantial experience in the discipline involved in the dispute; impeccable credentials; a stainless reputation; impartiality and independence from the outcome and the participants in the proceeding; the ability to think fast; and the willingness to assist the tribunal and always speak the truth. Before the expert is appointed, a party can challenge the expert based on his lack of qualifications, impartiality or independence. In the event an objection is made, the tribunal must quickly rule on the objection to prevent delay. All of the rules described above make clear that the tribunal should give its expert clear instructions on the issues it wants the expert to analyze, and any requirements for the expert report. The tribunal could direct the expert to provide specific information regarding a particular issue, or answer a specific question. The tribunal and the parties should agree on a deadline for submission of the expert s report. 11 The deadline should be sufficiently in advance of the hearing so that the tribunal and the parties have tune to study it and prepare a response, since, as noted above, the parties have the right to question the panel-appointed expert during the hearing. An obvious benefit of the tribunal-experts report is that all of the arbitrators sitting on the tribunal will have the same understanding of the important technical issues that the expert analyzed. This will equalize any disparity of knowledge among the arbitrators on these issues. It is important to recognize that a tribunal expert is not a decision maker and therefore the appointment of that expert does not diminish the tribunal s responsibility to decide all of the issues submitted to arbitration. Party-Appointed Experts and Efficiency Arbitration rules, whether domestic or international, contemplate the use of party-appointed experts, but they do not prescribe any procedures relating to their selection. Nor do the rules provide any guidance on how to use experts to make the process more efficient. 12 The practices relating to the efficient use of party-appointed experts have been devised by practitioners who serve as arbitrators and arbitration counsel. Like tribunal experts, party-appointed experts tend to be used when a case involves technical or scientific issues. They are usually retained by outside counsel. Proactive in-house counsel could be involved in, or monitor, the selection of the expert if cost is an issue. Party-appointed experts usually investigate the facts they need to analyze the issues submitted to them and then produce an expert report for the client. Not all experts testify at the hearing, but many do. D I S P U T E R E S O L U T I O N J O U R N A L 3

4 An efficient way to use these experts derives from experience putting experts in the same discipline in the same room; more often than not, experience has shown that they are able to agree on some of the issues. This led to the practice of the joint expert meeting for the purpose of narrowing the issues. The product of this meeting is a joint expert report provided to the parties and the panel that describes the issues the experts agree on, those they don t agree on and their opinions on the latter issues. Narrowing the issues in dispute clearly reduces hearing time as it is not necessary to have any witness testimony on direct or cross regarding the issues the experts agreed upon. It also saves deliberation time because the panel does not need to address those issues in the award. identifying the areas of agreement and disagreement that notes the reasons for the latter. While a tribunal expert adds to the overall cost of the arbitration, if a panel does not have the needed technical expertise and/or is faced with many divergent technical issues in dispute, the tribunal expert may be able to more concisely and succinctly identify and explain the issues for the panel. The tribunal could allow party representatives to attend joint expert meetings and weigh in during the preparation of the joint expert report. The only caveat is that opposing experts may be reluctant to agree on anything if their clients are present. A useful checklist regarding this procedure can be found in Chapter 11 of International Arbitra - Narrowing the issues in dispute clearly reduces hearing time as it is not necessary to have the witness testify on direct or cross regarding the issues the experts agreed upon. It also saves deliberation time because the panel does not need to address those issues in the award. For the joint expert meeting and report to result in the desired savings, it is essential that the parties agree at the earliest possible time to list the disputed issues that they want the experts to consider narrowing. The very exercise of developing this list will help the parties seek out experts with the same subject-matter expertise. 13 After the experts have been retained and produced their reports, the parties should refine the list of disputed issues to submit to the experts for narrowing. Typically, the process for expert conferencing to narrow the issues is discussed at the initial preliminary management hearing. The technique can be suggested by the chair of the panel (or sole arbitrator) or by one or both counsel. The parties agreement to use this procedure should be included in the panel s case management and scheduling order. Thus, the parties will know about it when they decide on their experts. The joint meeting of the experts is often orchestrated by the panel s instruction to the parties to have their experts contact each other to arrange the meeting. The panel may give the parties some rules for organizing and producing the joint report. Alternatively, the panel may retain its own expert to facilitate the joint expert meeting, take notes and then prepare the joint report tion Checklists. 14 It advises: Experts should be instructed that the purpose of their meeting is to determine areas of agreement and disagreement and not to negotiate a resolution to the dispute or make concessions. The checklist also recommends consideration of the experts taking joint minutes of the meeting [to] record the areas of disagreement and the reasons for them. The checklist raises the issue of whether the experts discussions at the meeting will be disclosed to the tribunal or will be without prejudice. It advises, Experts may make more pro - gress in arriving at agreed joint minutes if their discussions are without prejudice and the only matter that is put before the tribunal is the joint minutes which they ultimately produce. 15 These issues were addressed in an Arbitration Panel Order in a matter in which I was involved as an expert several years ago. An excerpt from this order is in the sidebar below. Australia has made extensive use of joint expert reports in its court system and in arbitration. The procedure for experts in the Land and En - vironment Court of New South Wales involves the following: 1. File and serve expert reports/statements not less than 14 days before the hearing. 4 A U G U S T / O C T O B E R

5 Summary of International Rules Concerning the Use of Experts in Arbitration Name of Rules Article Summary of Rules (Numbers refer to paragraphs in the Articles referenced in column 2) UNCITRAL Arbitration Rules (revised 2010) ICDR International Arbitration Rules (June 1, 2009) ICC Arbitration Rules (2012) LCIA Arbitra tion Rules (Jan. 1, 1998) IBA Rules on the Taking of Evidence in International Arbitration (May 29, 2010) Article 29 Article 22 Article 20 Establishing the Facts of the Case Article 21 Experts to the Arbitral Tribunal Article 5 Party Appointed Expert Article 6 Tribunal Appointed Expert 1. Tribunal may appoint an independent expert(s) to offer report on specific issues determined by tribunal. Copy of the report is made available to the parties. 2. Expert provides description of qualifications and statement of independence before accepting appointment; parties may object with tribunal deciding whether or not to take action. 3. Parties shall give the expert any relevant information; parties can examine any document the expert has relied upon. 4. Any party may request a hearing with the opportunity to interrogate the expert and each party may present expert witnesses to testify on the issues. 1. Tribunal may appoint an expert(s) to report on specific issues. 2. Parties shall offer expert access to any relevant document or property. 3. Expert s report shall be provided to the parties, and they can offer in writing their opinion as well as review any document relied upon. 4. Parties have the opportunity to question the expert at the hearing and offer their own expert to provide testimony. 3. Tribunal may decide to hear witnesses, or experts appointed by the parties, or any other person; parties have the opportunity to be present. 4. Tribunal may appoint an expert(s), define their terms of reference, and receive their reports. Tribunal must consult with parties prior to appointment; parties have the opportunity to question any such expert at a hearing. 21(1). Unless otherwise agreed by the parties in writing, (a) the Tribunal may appoint an expert(s) to report on specific issues, and (b) may require the parties to give the expert(s) access to relevant documents and property. 21(2). If, a party requests, or the Tribunal finds it necessary, the expert(s), after delivering the expert report to the Tribunal, shall participate at a hearing(s) where the parties will have opportunity to question the expert and present their expert witnesses to testify on the issues. 1. A party may rely on an expert as a means of evidence on a specific issue. Party must identify any expert it intends to rely on, and the expert must submit a report. 2. Expert report must contain: name/address of expert with statement of any past relation to parties or Tribunal as well as summary of qualifications; description of instructions pursuant to which expert is providing opinions/conclusions; statement of facts upon which expert opinion is based; description of methods, evidence, and information used. 3. If expert reports are submitted, any party may submit revised or additional expert reports, including use of non-previously identified experts so long as response is to matters contained within another party s expert s statements or reports. 4. Tribunal may order any party s experts to meet and confer on the issues, recording in writing areas of agreement and disagreement. 5. If a party-appointed expert fails to appear for the hearing, his or her report shall be disregarded. 1. Tribunal may appoint an expert(s) to report on specific issues; report shall be provided to the parties. 2. Before expert accepts appointment, they will submit description of qualifications and statement of independence to the parties. 3. Parties shall provide to expert(s) access to any relevant documents or property; experts shall make note of any non-compliance. 4. Expert shall provide a report containing: name/address of expert with description of their background/qualifications; statement of facts opinion is based upon; expert s opinion, including providing any document relied upon not previously produced. 5. Tribunal shall provide expert report to the parties, and the parties have opportunity to review any document or property used in report. 6. Tribunal and/or parties may request the expert to appear at a hearing where they can pose questions to the expert. 7. A report by a Tribunal-appointed expert shall be assessed by the Tribunal with due regard to all circumstances of the case. 8. Fees/costs from a Tribunal-appointed expert shall form part of the costs of the arbitration. * The ICC Arbitration Rules 2012 offer Case Management Techniques in Appendix IV. None of these rules specifically refer to using experts. However, in 2007, the ICC published Techniques for Controlling Time and Costs in Arbitration: Report from the ICC Commission (ICC Publication 843), which contained several suggestions regarding the use of expert witnesses. These suggestions begin with the presumption that expert evidence will not be required [ 65]. ICC International Centre for Expertise may assist Tribunal in identifying an expert at no cost [ 66]. Define subject matter and scope of expert evidence at an early stage [ 67]. In most cases only one expert per party for a particular area of expertise will be necessary [ 68]. Consider limiting number of rounds of expert reports, consider if simultaneous or sequential exchange will be more efficient [ 69]. Experts can meet and discuss views after exchanging reports; time and cost savings can be realized if experts compile a list of issues they agree and disagree on [ 70]. Consider use of a single tribunal-appointed expert or an expert appointed jointly by the parties [ 71]. D I S P U T E R E S O L U T I O N J O U R N A L 5

6 2. Confer not less than 7 days before the hearing and identify: the issues within their expertise; the matters upon which they agree; the issues upon which they disagree; and the reasons for any disagreement. 3. Not less than 5 days before the hearing file a joint statement specifying matters agreed and issues not agreed and the reasons for non-agreement. Australia s Uniform Civil Procedure Rule 2005 deals with the expert conference and joint report. 16 Rule 31.20(2)(h) authorizes the court to di rect experts in relation to the same issue to confer, either before or after preparing experts reports in relation to a specified issue. Rule 31.24(1) authorizes the court to direct expert witnesses: (a) to confer, either generally or in relation to specified matters, and (b) endeavor to reach agreement on any matters in issue, and (c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and (d) to base any joint report on specified facts or assumptions of fact, and at any time, before or after they have furnished experts reports. Rule 31.24(2) authorizes the court to direct that a conference be held: (a) with or without the attendance of the parties affected or their legal representatives, or (b) with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or (c) with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue). Instructions can be given to expert witnesses before their report is furnished to their clients. Rule provides that if a direction to confer is given under rule 31.24(1)(a) before the expert witnesses have furnished their reports, the court may give directions as to: (a) the issues to be dealt with in a joint report by the expert witnesses, and (b) the facts, and assumptions of fact, on which the report is to be based, including a direction that the parties affected must endeavor to agree on the instructions to be provided to the expert witnesses. Parties could adapt these rules for use in arbitration to implement the joint expert meeting and reports. Excerpt from an Arbitration Panel Order Regarding the Use of Experts In the course of [the preliminary conference with Arbitration Panel] the arbitrators made a number of changes to the procedures being undertaken by the parties [to] prepar[e] [for] the hearing. The first is that the arbitrators required the parties to exchange their expert reports no later than... Secondly, the arbitrators directed the parties to provide to them, and to exchange, a list of their experts [of like discipline] who shall be giving opinions on issues relating to. Thirdly, the arbitrators directed [the parties ] experts after the exchange and review of their reports, to contact one another to discuss the issues arising from those reports. The arbitrators required all conferring experts to prepare a list of the matters of agreement and disagreement and to record in writing the principal grounds for all areas of disagreement. The arbitrators have requested that [the experts provide] those lists [to the parties] and to the arbitrators before... We have now exchanged lists of experts reporting on issues relating to Area XX and YY. We will forward you a copy of the other side s list shortly. The arbitrators have also requested that... the experts make initial contact [with each other by] phone or to [introduce themselves], and confirm [their] contact details. It is not necessary or appropriate for [the experts] to discuss any substantive opinions or issues during this first contact. [They] should avoid doing so. This discussion will properly occur after we have received (and the parties have [each] been given a copy of) the other s expert report. The arbitrators have directed that, apart from the lists of the matters of agreement and disagreement and the grounds of disagreement, all of the discussions between the experts shall be conducted 1. independently and on the basis of professional opinion; and 2. without prejudice. [All such discussions] shall be privileged from disclosure. Notwithstanding this, any comment[s made by the experts] about any of the issues between the parties is likely to be recorded [by the parties representatives and be reported to the parties.]. For reasons of certainty, it would be prudent [for the experts] to carefully record [their] discussions. 6 A U G U S T / O C T O B E R

7 The Expert Witness Panel (also known as Dueling Experts or Hot Tubbing ) Another method of reducing hearing time is to have experts present their evidence concurrently. The expert witness panel is a means of eliciting expert evidence from all the experts at one time. Each expert can be asked to comment on the answers of another expert, thereby providing the panel with more assistance than if the experts testified separately at different times. Stan Sklar wrote an article about this procedure as early as the winter of and set out a protocol for its use, which readers may want to consult. 17 When experts who are supposed to be neutral (but would not be there if they did not support the position of their respective clients who pay their fees) testify at the same time, they may appear to be less biased in favor of the client. The concurrent witness panel should be discussed at the initial case management hearing and the parties and the panel should agree to it if maximum efficiency in arbitration is to be achieved. The process of having experts testify concurrently generally works as follows: The parties experts (and the panel s expert, if one is appointed) are called to testify at the same time at the hearing. Sklar s protocol suggests having the witnesses sit side by side to make it easier for them to question each other. Although the process may vary, the general chain of events is as follows: The experts are sworn in together. Each expert presents a brief summary of his or her key findings and opinions on the disputed issues. Each expert then comments on the other s opinions (note: if a joint expert report has been prepared, the only opinions that will be presented in the concurrent evidence are those expert opinions that differ). Each expert may ask questions of the other. Claimant s counsel will then identify the topics upon which he or she will crossexamine each expert in turn. The experts may again comment on the opinions presented. Respondent s counsel will then identify the topics upon which he or she will crossexamine each expert in turn. The experts may again comment on the opinions presented. The panel may then ask questions of the experts. Australia also uses concurrent expert panels. 18 Rule of the Uniform Civil Procedure Rules authorizes the court to direct the expert witnesses to be sworn one immediately after another. Then comes the direct examination of each expert one after the other so that each can give an oral exposition of his or her opinions on the issues and on the opinions of the other expert. The rule also authorizes cross-examination of each expert witness one at a time, or by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time, until the cross-examination or re-examination of all the expert witnesses is complete. The rule also authorizes any expert witness to ask questions of other expert witnesses on the witness panel. The concurrent witness panel greatly reduces hearing time because it presents the expert evidence to the panel all at one time. As a result, everyone is on the same page. This is much more effective than the traditional way of presenting expert testimony, where days or even weeks can pass before the next expert is called to testify on the same issues. When the experts testify as a panel on the same day, if the arbitrators have any questions, they can ask the experts on the panel and find out the answers immediately. Also, the process helps determine the real areas of disagreement. Two things may follow from the expert witness panel. The number of disagreements on large significant issues will be reduced as the experts begin to show agreement. This allows the truly large issues to be addressed. The other is that one party s case will become stronger and the other party s case will look weaker. This may encourage settlement talks. It will also de fine the case within the arbitration panel. The expert witness panel has been criticized for being too adversarial. Those of us who have used the process and have participated on such panels have found that the process really does reduce hearing time and assist the arbitrators with their deliberation of expert evidence. Experts generally value their reputation and integrity. They do not want to see that reputation tainted in any way. This is particularly true in an industry as small as the construction industry. Further, when the experts meet to discuss the issues and then prepare a joint expert report, they are more likely to retain their independence. Here is a caveat about using the expert witness panel. It is of upmost importance that the parties thoroughly vet the experts they are considering so that they do not appoint ex perts who, either because they have a history or another reason, D I S P U T E R E S O L U T I O N J O U R N A L 7

8 are unable to agree on anything. If this happens, the procedure will not achieve the designed savings. Conclusion Today, it is incumbent on arbitrators to craft an arbitration process that will identify and decide the disputed issues in the shortest amount of time possible. This process must be crafted at the very beginning of the arbitration, using the knowledge and experience of the members of the panel. Any delay will have a domino effect, ad - ding unnecessary amounts of time to the proceeding, with added expense. Expert reports and testimony can help identify the real issues in dispute and facilitate the arbitrator s deliberations only if the experts are truly in - dependent and impartial. These are perhaps the most critical attributes the experts should have. Lastly, the panel must recognize that it has the responsibility to manage the arbitration from day one and this includes using the authority granted to the arbitrators by the rules of the administering arbitration institution. 1 International Chamber of Com - merce publication Techni ques for Controlling Time and Costs in Arbi - tration reported that in 2003 and 2004, 82% of the total costs incurred by the parties in arbitration directly resulted from the costs of presenting their case. 2 American Arbitration Association (AAA) Construction Industry Arbitra - tion Rules (amended and effective Oct. 1, 2009, available at 3 The Procedures for Large, Com - plex Construction Disputes are published with the AAA Construction Industry Arbitration Rules referred to in n The ICDR is the AAA s international division. 5 The acronym UNCITRAL refers to the United Nations Commission on International Trade Law. ENDNOTES 6 Indeed, Article 16 of the ICDR international rules is very similar to Article 17 of the UNCITRAL Arbi - tration Rules (as revised 2010). 7 The IBA Rules on the Taking of Evidence in In ternational Arbitration is available on the IBA Web site at 8 For example, see Article 29(1) & (5) of the UNCITRAL Rules and Article 22(1) & (4) of the ICDR rules. 9 UNCITRAL Rules, art. 29(1). 10 UNCITRAL Rules, art. 29(5) 11 International Chamber of Com - merce, Techniques for Controlling Time and Costs in Arbitration, 42 (ICC Publica tion 843). 12 Appendix IV to the 2012 revision of the ICC Rules of Arbitration contains one suggestion for the use of experts. 13 ICC Techniques, supra n G. Hanessian, & L. Newman, eds., (2nd ed Juris Publishing). 15 Id. 16 New South Wales Bar Association, 2010 Alternative Dispute Workshop, 28 August 2010, Managing Expert Evidence The Hon. Justice Harrison, Selected UCP Rules-Expert Evidence. 17 Stan Sklar, Innovations in Arbi - tration: Using Tandem Wit ness Exam - in ation When Experts Col lide, 2(1) ADR Currents 14 (Winter ). 18 See Uniform Civil Procedure Rules The Judicial Commission of New South Wales and the Australian Institute of Judicial Administration jointly produced a DVD that shows how concurrent expert panels work. It is called Concurrent Evidence-New Methods with Experts. For information go to au/publications/ education-dvds/copy_ of_education-dvd. 8 A U G U S T / O C T O B E R