Do you know the role Quantum Experts play in arbitration concerning Nuclear Power Projects?
Matthew Finn, Managing Director and quantum expert at Ankura Consulting (internal disputes consultancy) and Anand Ayyappan Udayakumar, a lawyer in the Infrastructure, Construction and Energy Disputes team at CMS (international law firm), seated in London provide their insights on what an expert witness needs to possess to provide quantum evidence in nuclear projects and its importance to India.
Nuclear power station projects are often complicated, multi-layered and technically complex. During the build stage of these projects, technical, delay and quantum issues may present itself.
In arbitration proceedings involving quantum issues, the parties appoint their respective experts, or the tribunal after consulting with the parties directly appoints to deal with specific issues. In the case of party-appointed experts, it is common for a joint expert report to be provided prior to the hearing.
The quantum expert’s role involves simplifying issues requiring quantum issues for the arbitral tribunal’s benefit and envisages an overriding duty to the tribunal regardless of where the instructions have been received or by whom payment is made (i.e. independence and impartiality). In addition, a quantum expert’s role involves:
Accurately identifying the cause of action;
Selecting the appropriate measure of loss;
Working within remoteness requirements;
Making comparisons on a valid, logical and equivalent basis;
Establishing loss of alternative opportunities appropriately;
Avoiding duplication; and
Detailing approach adopted in simple terms.
In arbitration, an expert is generally required to comply with the IBA Rules of Evidence and CIArb Protocol.
Quantum issues surrounding nuclear power can become very complicated with prolongation and disruption claims which a quantum expert is required to consider given unique design and construction processes which are only ever seen in nuclear power projects. The relevant regulations and complex design of nuclear projects can produce very different quantum assessments to those seen in oil, gas, coal and renewable power projects. Currently, nuclear power plants for 7000MW are under construction in India with another 20,000 MW (21 new nuclear reactors) being targeted by 2031, which translates into the likely possibility for niche and complex quantum issues to arise.
International arbitration demands a rigorous adherence to the requirements and standards to the IBA Rules of Evidence and CIArb Protocol. Therefore, a quantum expert in international arbitration needs to full comply and to do so must be prepared, clear, concise and be trusted. Fundamentally, the expert evidence must assist the tribunal to deliver an independent and impartial award.
Matthew Finn BSc Hons LLM FCIArb MCInstCES FCIOB FRICS MAE MEWI
Matthew Finn, Managing Director, Ankura, based in London. He is a Fellow of the Royal Institution of Chartered Surveyors, Fellow of the Chartered Institute of Arbitrators, Fellow of Chartered Institute of Building and a Member of Chartered Institution of Civil Engineering .
Matthew has regularly appointed as an expert witness in the field of quantum (damages) in construction matters and he has testified in UK Litigation on several occasions. Matthew has been recognised in Who’s Who Legal in Arbitration, Quantum and Delay and Construction chapters in publications in 2018, 2019 and 2020.
Matthew has been appointed on many occasions as an expert in the field of quantum on nuclear and power related disputes. In addition to expert witness appointments, Matthew is a certified civil and commercial mediator, construction adjudicator, international and domestic arbitrator having been appointed on over 25 occasions and sits on over 15 worldwide arbitration panels.
Anand Ayyappan Udayakumar B.A.B.L. (Hons.) M.B.L., LL.M.
Anand Ayyappan Udayakumar is an Infrastructure, Construction and Energy (ICE) disputes lawyer at CMS Cameron McKenna Nabarro Olswang LLP, seated in London.
He primarily involves in handling arbitrations under institutional rules (including ICC, LCIA, SIAC etc.) and ad-hoc procedures in different stages and on issues relating to certification and payment, delay and disruption, defects, loss and/or expense claims, bank guarantees/bonds and contract termination for major standard forms contracts including FIDIC, and bespoke/tailored agreements.
He is Indian law qualified and has worked in-house with a renowned multinational construction conglomerate catering to its operations in India, Middle East, Africa and South East Asia. He has been recognized by Legal500 in GC Powerlist: Middle East Team 2018.