The joint statement of experts is a procedural device used in international arbitration and litigation to identify the matters on which the parties' experts agree and disagree, and to narrow the issues for the tribunal. In construction disputes involving substantial quantum, the joint statement of the parties' quantum experts is often one of the most important documents in the case, and the process by which it is prepared can substantially affect the conduct and outcome of the dispute.
The procedural framework for the joint statement is typically set out in the tribunal's directions. The tribunal will direct the experts to meet (in person or by video conference), to discuss the issues identified in their reports, to identify the matters on which they agree and disagree, and to record those matters in a joint statement signed by both experts. The directions will usually specify the format of the statement and the deadline for its production.
The joint statement should not be a vehicle for further argument or for the introduction of new positions. The experts have already presented their full positions in their written reports, and the joint statement is the opportunity to identify, in a structured form, the points of agreement and disagreement between those positions. A joint statement that reads as a continuation of advocacy is unlikely to assist the tribunal.
The structure of the joint statement is typically issue-by-issue. For each issue identified in the experts' reports, the joint statement should record the position of each expert, the matters on which they agree, and the matters on which they disagree (together with a brief summary of the reasons for the disagreement). Where the disagreement turns on differences in methodology, the experts should explain the choice each has made and why each considers the alternative inappropriate.
Joint statements work best when both experts approach the process constructively and in good faith. An expert who refuses to engage with the opposing expert's analysis, who declines to acknowledge points that should fairly be acknowledged, or who uses the joint statement as an opportunity to introduce new arguments not raised in the report, will damage their own credibility and the value of the document to the tribunal. Tribunals notice these things, and they remember them at the hearing.
An effective joint statement can substantially shorten the cross-examination of the experts at the hearing. Where the experts have agreed on a methodology, on the underlying data, or on the proper treatment of a particular item, those points need not be revisited at the hearing. The cross-examination can focus on the genuine areas of disagreement, and the tribunal's time can be used efficiently. This benefits the parties as well as the tribunal.
Our quantum experts at Construction Expert Witness have prepared joint statements with opposing experts in arbitrations across the GCC and beyond. We approach the process constructively, engage in good faith with the opposing expert's analysis, and produce joint statements that genuinely assist the tribunal in narrowing the issues and resolving the dispute.