Peers and clients say:
"Tom has a lot of experience in disputes, both in Qatar and internationally"
"He is very thorough and great with the details"
"Tom is a delight to work with and extremely user friendly"
What excites you most about practice as a delay and quantum expert today?
The saying “time is money” cannot be further from the truth! The dispute industry is becoming more and more complex with the dynamics constantly changing. The lawyers are now very much “construction educated”, disputing parties have been there and done it, hence increasing the pressure pot delay and quantum experts sit in. The challenge to deliver a persuasive independent opinion on complex matters excites me at the prospect of maintaining and delivering my duty to tribunals.
Pricing disputes have risen dramatically around the world due to the war in Ukraine, rising inflation and labour shortages. What are the key elements for arbitration experts to keep in mind when dealing with these changes in analyses?
I would actually say that pricing disputes have always been the issue in most disputes. Perhaps the extent and exponential rising inflation, initially driven by the covid-19 pandemic and now the ongoing war in Ukraine, may not be sustainable or manageable thus forcing decision makers to pursue additional cost claims. The labour shortages have not recovered since the pandemic, causing project delivery challenges.
The problems that keep cropping up for experts relate to evidence (or lack thereof) demonstrating the additional costs and which ‘pot’ they fall into i.e., is it due to war in Ukraine, and/or rising inflation, and/or labour shortages or is it a mixture of all these issues? Each of these issues requires a set of specific supporting information. In most cases, and particularly in the current market conditions, these issues are causing a combined and cumulative cost impact that experts may find challenging to isolate into individual impacts. This is mainly due to pricing strategies which are driven by a competitive market making calculations of likely additional costs, which is challenging when supporting evidence is not readily available.
How has your experience as an arbitrator and mediator impacted your approach when giving expert testimony?
I think being a testifying expert requires a high level of understanding of your field of expertise and your primary duty, which is to assist the tribunal in the findings. Having had the opportunity to be appointed as an arbitrator or a mediator, this helps me appreciate the difficulty arbitrators face when dealing with a myriad of complex issues and differences presented between experts. Keeping it simple is very hard but this is what tribunals want!
What are the greatest challenges currently faced by delay and quantum experts like yourself? How can they be effectively tackled?
There are several areas from my experience which I would summarise under two areas:
i. Experts’ duty – my primary duty is to assist the tribunal. However, I also have a duty to the appointing party. Therefore, managing the “divided duty” (as I call it) can be very challenging and requires full care and attention to ensure your independence is maintained and to deliver to meet both divides. This also requires that experts identify areas that require other expertise and ensure that the appointing parties understand such requirements early on. As mentioned earlier, teams are now very familiar with methodologies and can interrogate independent assessments or expertise.
ii. Procedure – the main challenges I have faced are driven by the late appointments in process by parties involved in disputes. Usually, appointments are after parties have set out their case/s without appreciating what the eventual appointed expert view on the matters will be and what supporting evidence required. Therefore, managing expectations requires a lot of time and management alongside finalising your reports and conclusions.
How can these issues be effectively tackled? In my opinion, this remains squarely with how the whole process can maximise the use of independent experts. Less time and framework of the experts’ joint statement process is given and yet this is an opportunity to clearly identify disagreements and/or narrow down the issues which would greatly assist tribunals. I also like ”hot-tubbing”, which I think tribunals get a lot out of. Why not introduce this in the joint statement process so that tribunals can identify or narrow down the list of issues between experts early on?
What are the main drivers of delay issues in the current market, and how can clients seek to mitigate the damage?
In my opinion, the main drivers of delays centre around the delayed decision making by project owners or their consultants. This also mainly flows from unclear specifications, and in instances where specifications are ‘open’ it remains unclear how much contractors’ proposals are acceptable. And, in instances when specifications are “closed” how much both sides fully accept the consequences i.e., time, cost, and quality.
What challenges are posed by international arbitrations involving ESG matters?
The dispute industry expenditure is huge and can lead to substantial damages being awarded. This means there is potential to drive, or set precedence, on some policy issues. Everyone involved, if not fully aware, is therefore unconsciously making decisions that may affect ESG matters for future generations. I think the challenges will continue, particularly around environmental and diversity (and inclusion) in international arbitrations, which is very much playing catch up.
If you could introduce one reform to arbitration expert testimony, what would it be and why?
The new order of having experts agree joint statements early on in the proceedings is a great idea. So why not have experts testify before any factual witnesses? The experts’ role and duty is to independently provide the tribunal a “road map” of issues to address for each expertise. That way the tribunal can then deal with legal, contractual, and factual issues to tie to expert testimony (including joint agreements) already provided. Experts are normally called at the end when different positions have been further “amplified”.
What is the best piece of career advice you've ever received?
Always be truthful and honest, and everything sorts itself out!