Insights & Intelligence

Published intelligence, commentaries and insights.

Technical articles, long-form cited and referenced commentaries, short-form commentaries and intelligence-report extracts on current topics - Infrastructure governance, risk, EPC contracting, renewable energy project delivery, claims and disputes, arbitration, litigation and more with a focus on Asia-Pacific and beyond.
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EDITORIAL TRACKS  ·  ADVISORY AND DISPUTES

Two Tracks. One Editorial Standard.

ADVISORY track

Governance
Risk
EPC
Project Finance
Frontier & Emerging Markets
Intelligence Report
Advisory Track

DISPUTES track

Arbitration
Causation
Delay Analysis
Standard of Care
Expert Practice
Claims
Disputes Track
ADVISORY  ·  LATEST ARTICLES & NOTES

Advisory Intelligence.

Technical notes, governance analysis, and practitioner commentary on infrastructure and renewable energy advisory. Written for project sponsors, lenders, boards, and legal counsel navigating complex project delivery across Asia-Pacific, frontier and emerging markets.
  • FEATURED
Most overruns are decided before construction starts. - Commentary

Most overruns are decided before construction starts.

Six controls the Sponsor owns, regardless of what the contract says.

Bent Flyvbjerg's database is the largest of its kind — more than 16,000 projects across 136 countries. Measured against their own approved budgets and schedules, 47.9 per cent finished on budget. 8.5 per cent finished on budget and on time. 0.5 per cent finished on budget, on time, and with the benefits promised.

That is not a construction problem. It is a governance problem, and most of it is settled before a contractor mobilises. The contracting model is typically chosen in a fortnight and then governs the risk outcome for years. Pre-construction is the least expensive phase of the project and the phase in which the largest sums are committed. Neither decision is recoverable once the works begin.

This commentary sets out six controls that remain with the Sponsor in every delivery model, turnkey included. Each is lost quietly, long before it shows up in a report.

Delivery strategy — fixed before the market is approached, not after
Pre-construction certainty — bought while it is still cheap to buy
Sponsor capability — turnkey transfers work, not accountability
Interfaces — the space between contracts, owned deliberately
Early resolution — issues settled before they harden into claims
Continuous assurance — knowing whether the reported position is true

Each control is set out with the specific disciplines it requires, an example critical interface register, and the point at which Sponsor influence over cost and programme begins to decline.

A contract manages what sits inside it. Someone has to manage what does not.

To read the summary commentary download the pdf.

  • FEATURED
Why Renewable Energy Projects Stall Before Financial Close - Commentary

Why Renewable Energy Projects Stall Before Financial Close - Commentary

Lenders are not troubled by risk. They price risk every day. They are troubled by uncertainty, because uncertainty cannot be priced - and what cannot be priced gets deferred to the next credit committee.

Every project allocates risk. Not every allocation is financeable. The test is not whether the allocation is fair — it is whether a credit committee will accept it without demanding a mitigant the project cannot afford.

A project is not one contract. It is many, executed at different times by different advisers under different pressures. No single agreement fails a financing. They fail against each other.

Conditions precedent do not cause delay. Discovering them late does. On most projects the CP schedule is drafted at term sheet, filed, and opened again eight weeks before the target close.

Financial Close is an integration exercise conducted under deadline by parties with different incentives. It needs one person whose entire job is to hold the whole picture. On stalled projects, that person usually does not exist.

At the start, every party wants Financial Close. By month four they want different versions of it. The divergence is normal and predictable. Leaving it unmanaged is neither.

Financial Close is the moment the market audits four years of development decisions. Projects that close efficiently do so because the work was done — not because the negotiation went well.

Financial Close requires five forms of readiness - Technical, Commercial, Regulatory, Financial and Organizational.

Download the pdf to read the full carousel.

  • FEATURED
Renewable Energy Project Delivery in Asia-Pacific: Summary Commentary

Reassessing EPC Wrap, Turnkey Lump Sum and Multi-Contracting in Asia-Pacific Renewable Energy Markets - a commentary

For decades, renewable energy projects across Asia-Pacific have relied on EPC wrap and turnkey contracts as the preferred path to certainty, bankability and risk transfer.

Yet as projects become larger, more technologically sophisticated and increasingly dependent on transmission networks, OEMs, regulators and multiple specialist contractors, the nature of project risk has fundamentally changed.

This article examines EPC wrap, turnkey lump sum and multi-contracting through a practical lens.

To read the summary commentary download the pdf.

  • FEATURED
Distressed Projects - Summary Commentary

Distressed Project Advisory, the Anatomy of Project Stress, and What Recovery Actually Requires.

Nearly every complex infrastructure and renewable energy project that enters into distress and eventually ends in formal dispute passed through a period, typically twelve to twenty-four months long, when it was still recoverable. The programme was in distress but not yet in default. The commercial positions had hardened but the formal claim had not been submitted. The lender was beginning to ask questions but had not yet triggered the cure period. This commentary examines that window: what it looks like, how long it stays open, what closes it, and what is required to act within it before it closes.

The author’s view, based on more than three decades of infrastructure project delivery across Asia-Pacific, is that this pattern is not confined to poorly managed projects. The most instructive feature of major infrastructure distress is its prevalence on projects staffed by competent, experienced professionals operating within governance frameworks that were adequate at financial close but progressively inadequate as delivery challenges accumulated. The difference between a project that recovers and one that proceeds to formal dispute is rarely a function of the technical competence available to the project. It is a function of when, and by whom, the honest assessment of the project's trajectory is surfaced to the governance framework that has the authority to act on it.

The thesis of this commentary is straightforward: a project that appears to be performing satisfactorily may in fact be a stressed project awaiting discovery, and generally projects come undone by the compound effect of a series of mostly known risks.[1] Good starts do not guarantee good projects, because infrastructure and energy projects are extended in duration, compound in complexity over time, and are delivered by people who become tired, institutionally captured, and progressively less willing to provide the honest governance that the project's increasing stress demands. Many distressed projects remain recoverable, but the method of recovery is as important as the decision to attempt it. And the single most expensive outcome, formal dispute and arbitration, can often be avoided if the intervention occurs early enough and is conducted by practitioners with the relevant direct experience to change the project's trajectory rather than merely document its decline.

[1] Flyvbjerg, B., & Gardner, D. (2023). How big things get done: The surprising factors that determine the fate of every project, from home renovations to space exploration. Currency. p. 115.

To read the short-form commentary download the pdf.

  • FEATURED
APAC’s Energy Transition ConstraintIs No Longer Generation. It Is the Wires.

Under revision to include IEA's Electricity 2026 - Analysis and forecast to 2030.

Why grid infrastructure is becoming the defining capital-allocation and bankability risk of the next decade.

Across the Asia-Pacific, renewable generation can now be financed, procured, and built faster than electricity networks can absorb, dispatch, and transport its output. The binding constraint on the next phase of the energy transition has migrated from the generation to the transmission systems, and more precisely, from engineering to institutions.

For most of the past decade, the Asia-Pacific energy conversation has been a conversation about generation. Governments announced gigawatt-scale renewable targets, investors competed to deploy capital, developers assembled pipelines and renewable energy deployment records tumbled. The cost of renewable energy technology continued to fall to the point where, across most major markets in the region, new wind and solar has become the cheapest available source of commercial scale electricity. The uncomfortable consequence and the reality that the renewable energy industry faces is that a binding constraint on the energy transition has not disappeared. It has moved.

The constraint now sits in the transmission systems and grid networks. Renewable generation across the Asia-Pacific region is increasingly being commissioned faster than transmission systems can absorb, dispatch, and transport it, and the symptoms are no longer marginal. Connection queues can be measured in years, curtailment measured in tens of percent, deferred commercial operations, and in some cases risks of stranded investment assets.

This commentary advances a deliberately narrower and more demanding proposition than the familiar observation that transmission “matters”. The timing mismatch is substantial: the IEA estimates that planning, permitting and completing new grid infrastructure can take five to fifteen years, compared with approximately one to five years for new wind and solar facilities, one to three years for data centres and one to two years for EV-charging infrastructure.[1] Sophisticated industry participants already accept this reality.

The proposition is this: the Asia-Pacific energy transition is now constrained less by generation technology, capital availability, developer competition, workforce capacity and resource quality than by the capacity of institutions, utilities, and regulatory frameworks to deliver network infrastructure at a pace consistent with renewable energy deployment ambition.

The scale of the coming system requirement reinforces this diagnosis. The IEA forecasts Asia-Pacific electricity demand to grow by an average of approximately 4.7% annually between 2026 and 2030, with the region accounting for 56% of global electricity use by 2030, up from 53% in 2025. Solar PV and wind are expected to meet approximately 86% of the region’s additional electricity demand over the forecast period.[2] The resulting task is therefore not simply to connect more generation, but to operate a substantially larger and more variable electricity system.

The deficit is real, but it is downstream of a governance problem. It determines where the risk sits, who carries it, and how it is priced.

The answers will of course vary by market. The discipline of asking them should not. The wire problem is no longer somebody else’s problem to acknowledge in a risk register and then ignore. It is the problem.

[1] International Energy Agency. (2026). p. 129.

[2] International Energy Agency. (2026). p. 46.

To read the long-form cited and referenced commentary download the pdf.

  • FEATURED
Renewable Energy Project Delivery in Asia-Pacific: From Construction Risk to Integration Risk

Reassessing EPC Wrap, Turnkey Lump Sum and Multi-Contracting in Asia-Pacific Renewable Energy Markets.

Project success in Asia-Pacific’s energy transition is determined less by contractual form than by the capability, governance and experience available to support it. Every delivery model has a legitimate purpose; what differs is the risk profile and the organisational capability required to manage it.

For decades, renewable energy projects across Asia-Pacific have relied on EPC wrap and turnkey contracts as the preferred path to certainty, bankability and risk transfer.

Yet as projects become larger, more technologically sophisticated and increasingly dependent on transmission networks, OEMs, regulators and multiple specialist contractors, the nature of project risk has fundamentally changed.

This commentary argues that today’s renewable energy projects are no longer defined by construction risk - they are defined by integration risk. The question is no longer which procurement model is “best”, but whether the owner, contractor and project team possess the capability, governance and experience required to manage increasingly complex interfaces.

Drawing on more than three decades of project delivery across Asia-Pacific, together with international research, industry data and regional case studies, this article examines EPC wrap, turnkey lump sum and multi-contracting through a practical lens. It concludes that project success is determined less by contractual form than by organisational capability, institutional maturity and disciplined governance—an insight that is becoming increasingly important for developers, lenders, contractors, investors and dispute practitioners throughout the region.

To read the full long-form, cited and referenced commentary download the pdf.

  • FEATURED
Distressed Projects - Slowly, then all at once

Distressed Project Advisory, the Anatomy of Project Stress, and What Recovery Actually Requires.

Nearly every complex infrastructure and renewable energy project that enters into distress and eventually ends in formal dispute passed through a period, typically twelve to twenty-four months long, when it was still recoverable.

The programme was in distress but not yet in default.

The commercial positions had hardened but the formal claim had not been submitted.

The lender was beginning to ask questions but had not yet triggered the cure period.

This commentary examines that window: what it looks like, how long it stays open, what closes it, and what is required to act within it before it closes.

To read the long-form, cited, referenced commentary download the pdf.

DISPUTES  ·  LATEST ARTICLES & NOTES
Arbitration analysis, delay methodology, causation frameworks, and expert witness practice. Written for construction law partners, arbitrators, and parties navigating complex EPC disputes in international arbitration.

Disputes Intelligence.

Asia-Pacific infrastructure disputes are growing in value and volume - Are experts keeping pace? - Summary Commentary
  • FEATURED
  • DISPUTES
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Asia-Pacific infrastructure disputes are growing in value and volume - Are experts keeping pace? - Summary Commentary

A commentary on scarcity, specialisation, and the quality of decisions in Asia-Pacific infrastructure and energy disputes.

Across Asia-Pacific, infrastructure and energy disputes are growing in value, technical density, and dependence on expert evidence. This commentary argues that the central challenge is no longer whether expert evidence matters, but whether the model through which expertise reaches the tribunal is evolving as fast as the disputes it is asked to resolve, and why that is, at root, a question of decision quality.

SIAC recorded 886 new cases in 2025 — USD 14.53 billion in dispute across 79 jurisdictions. That is the published figure. It is a fraction of the disputes actually running. Delay and defects have not gone away. What has been added is a category of question sitting at once in engineering, economics, regulation and operations: battery degradation, grid-code compliance and model validation, the allocation of curtailment risk. These ask a decision-maker to evaluate how a complex system actually behaved inside an equally complex regulatory environment.

Persuasive evidence on those questions needs three things at once — deep, current, issue-specific knowledge; demonstrable independence; and the ability to give and defend evidence under adversarial testing. Each is scarce alone. The intersection is a very small pool, and in more than three decades I have found it thinnest precisely where dispute values and consequences are highest.

The question is no longer whether this person understands infrastructure. It is whether they understand this infrastructure, in this jurisdiction, under these regulatory conditions, at this point in the technology cycle.

Asia-Pacific infrastructure disputes are growing in value and volume - Are experts keeping pace? - Summary Commentary

  • 05 August 2026
Commentary
Expert Practice
A commentary on scarcity, specialisation, and the quality of decisions in Asia-Pacific infrastructure and energy disputes. Across Asia-Pacific, infrastructure and energy disputes are growing in value, technical density, and dependence on expert evidence. This commentary argues that the central challenge is no longer whether expert evidence matters, but whether the model through which expertise reaches the tribunal is evolving as fast as the disputes it is asked to resolve, and why that is, at root, a question of decision quality.
ICC International  Court of Arbitration's 2025 Statistics – a commentary
  • FEATURED
  • DISPUTES
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ICC International Court of Arbitration's 2025 Statistics – a commentary

ICC International Court of Arbitration 2025 statistics

The recently released ICC International Court of Arbitration 2025 statistics describe a forum growing in breadth, value, diversity and depth.

In 2025 the ICC International Court of Arbitration (ICC) registered 881 new arbitrations involving 2,531 parties, its second highest party count on record - drawn from 147 jurisdictions , seated across 123 cities in 70 countries, and spanning more than 25 industry sectors.

Read the commentary by downloading the pdf.

ICC International Court of Arbitration's 2025 Statistics – a commentary

  • 28 July 2026
Commentary
Expert Practice
Arbitration
Disputes
ICC International Court of Arbitration 2025 statistics describe a forum growing in breadth, value, diversity and depth. The recently released ICC International Court of Arbitration 2025 statistics describe a forum growing in breadth, value, diversity and depth. In 2025 the ICC International Court of Arbitration (ICC) registered 881 new arbitrations involving 2,531 parties, its second highest party count on record - drawn from 147 jurisdictions , seated across 123 cities in 70 countries, and spanning more than 25 industry sectors.
Artificial Intelligence in Expert Evidence - Summary Commentary
  • FEATURED
  • DISPUTES
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Artificial Intelligence in Expert Evidence - Summary Commentary

The Paradox of AI in Expert Evidence: Extraordinary Capability, Extraordinary Responsibility

A commentary on the current uses, predicted trajectory, and the risks and limitations of unqualified and unconstrained Artificial Intelligence use in expert evidence in arbitration and dispute resolution.

Artificial Intelligence (AI) is the most useful business tool that I have seen in over 30 years. Conversely, it is also one of the most dangerous tools. Recent industry discussions surrounding such a critical paradox have motivated me to research and subsequently write this commentary on AI use in dispute resolution.

The principal risk facing expert evidence is not that AI will replace experts. It is that AI will allow individuals lacking genuine expertise to produce outputs that superficially resemble expert analysis.

AI disclosure should become mandatory in expert evidence. Many practitioners will disagree. Some will argue disclosure is unnecessary. Others will argue it is already implied by existing duties. I disagree. The profession is moving too slowly.

AI is truly an extraordinary tool. The judgment required to use it responsibly remains entirely human and entirely dependent on the depth of operational industry experience behind it. That experience is not acquired by using AI more. It is acquired by doing the work, carrying the accountability, and having the demonstrable experience and qualifications to legitimately be classified as an expert.

The question I would put to any practitioner incorporating AI into their expert witness work is straightforward: If the AI produced the wrong answer, would you know? If the honest answer is ‘probably not’ or ‘no’, the AI should not be in the workflow.

To read the 7 page summary of the long-form commentary download the pdf.

Artificial Intelligence in Expert Evidence - Summary Commentary

  • 15 July 2026
Commentary
Methodology
Expert Practice
The Paradox of AI in Expert Evidence: Extraordinary Capability, Extraordinary Responsibility A commentary on the current uses, predicted trajectory, and the risks and limitations of unqualified and unconstrained Artificial Intelligence use in expert evidence in arbitration and dispute resolution.To read the 7 page summary of the long-form commentary download the pdf.
Ciarb's 2026 Expert Witness Report – a commentary
  • FEATURED
  • DISPUTES
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Ciarb's 2026 Expert Witness Report – a commentary

A commentary on Ciarb's July 2026 Report on Party-Appointed Expert Witnesses in International Arbitration, and what its findings on over-instruction, timing and joint reports mean for arbitration counsel and tribunals handling infrastructure and energy disputes

Ciarb's report does not argue for a replacement model of expert evidence, and it is right not to. Party appointment is not, by itself, the problem. What the report documents is a persistent gap between how tribunals, counsel and experts perceive the same process on instruction, timing and coordination, and between the procedural ideal and the experience reported by those working within it. The response is not another universal rule. It is more disciplined case management, clearer boundaries and earlier technical engagement, applied before the hearing rather than tested for the first time in cross-examination.

Read the full cited and referenced commentary by downloading the pdf.

Ciarb's 2026 Expert Witness Report – a commentary

  • 12 July 2026
Commentary
Expert Practice
A commentary on Ciarb's July 2026 Report on Party-Appointed Expert Witnesses in International Arbitration, and what its findings on over-instruction, timing and joint reports mean for arbitration counsel and tribunals handling infrastructure and energy disputes
As APAC Infrastructure Dispute Resolutions Become More Technical, Is the Expert Evidence Model Keeping Pace?
  • FEATURED
  • DISPUTES
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As APAC Infrastructure Dispute Resolutions Become More Technical, Is the Expert Evidence Model Keeping Pace?

A commentary on scarcity, specialisation, and the quality of decisions in Asia-Pacific infrastructure and energy disputes.

Across Asia-Pacific, infrastructure and energy disputes are growing in value, technical density, and dependence on expert evidence. This commentary argues that the central challenge is no longer whether expert evidence matters, but whether the model through which expertise reaches the tribunal is evolving as fast as the disputes it is asked to resolve, and why that is, at root, a question of decision quality.

SIAC recorded 886 new cases in 2025 — USD 14.53 billion in dispute across 79 jurisdictions. That is the published figure. It is a fraction of the disputes actually running. Delay and defects have not gone away. What has been added is a category of question sitting at once in engineering, economics, regulation and operations: battery degradation, grid-code compliance and model validation, the allocation of curtailment risk. These ask a decision-maker to evaluate how a complex system actually behaved inside an equally complex regulatory environment.

Persuasive evidence on those questions needs three things at once — deep, current, issue-specific knowledge; demonstrable independence; and the ability to give and defend evidence under adversarial testing. Each is scarce alone. The intersection is a very small pool, and in more than three decades I have found it thinnest precisely where dispute values and consequences are highest.

The question is no longer whether this person understands infrastructure. It is whether they understand this infrastructure, in this jurisdiction, under these regulatory conditions, at this point in the technology cycle. And the defining question for APAC infrastructure and energy disputes over the coming decade is therefore not whether expert evidence remains important. It is whether the right expertise reaches the decision-maker, at the right time, in the right form — and whether the profession is prepared to treat that as the measure of decision quality it has quietly become.

To read the long-form commentary download the pdf.

As APAC Infrastructure Dispute Resolutions Become More Technical, Is the Expert Evidence Model Keeping Pace?

  • 05 August 2026
Commentary
Expert Practice
Featured
A commentary on scarcity, specialisation, and the quality of decisions in Asia-Pacific infrastructure and energy disputes. Across Asia-Pacific, infrastructure and energy disputes are growing in value, technical density, and dependence on expert evidence. This commentary argues that the central challenge is no longer whether expert evidence matters, but whether the model through which expertise reaches the tribunal is evolving as fast as the disputes it is asked to resolve, and why that is, at root, a question of decision quality.
The Paradox of AI in Expert Evidence:Extraordinary Capability, Extraordinary Responsibility
  • FEATURED
  • DISPUTES
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The Paradox of AI in Expert Evidence:Extraordinary Capability, Extraordinary Responsibility

The Paradox of AI in Expert Evidence: Extraordinary Capability, Extraordinary Responsibility

A commentary on the current uses, predicted trajectory, and the risks and limitations of unqualified and unconstrained Artificial Intelligence use in expert evidence in arbitration and dispute resolution.

Artificial Intelligence (AI) is the most useful business tool that I have seen in over 30 years. Conversely, it is also one of the most dangerous tools. Recent industry discussions surrounding such a critical paradox have motivated me to research and subsequently write this commentary on AI use in dispute resolution.

The principal risk facing expert evidence is not that AI will replace experts. It is that AI will allow individuals lacking genuine expertise to produce outputs that superficially resemble expert analysis.

AI disclosure should become mandatory in expert evidence. Many practitioners will disagree. Some will argue disclosure is unnecessary. Others will argue it is already implied by existing duties. I disagree. The profession is moving too slowly.

AI is truly an extraordinary tool. The judgment required to use it responsibly remains entirely human and entirely dependent on the depth of operational industry experience behind it. That experience is not acquired by using AI more. It is acquired by doing the work, carrying the accountability, and having the demonstrable experience and qualifications to legitimately be classified as an expert.

The question I would put to any practitioner incorporating AI into their expert witness work is straightforward: If the AI produced the wrong answer, would you know? If the honest answer is ‘probably not’ or ‘no’, the AI should not be in the workflow..

Read the long-form, cited and referenced article by downloading the pdf.

The Paradox of AI in Expert Evidence:Extraordinary Capability, Extraordinary Responsibility

  • 01 August 2026
Commentary
Methodology
Expert Practice
The Paradox of AI in Expert Evidence: Extraordinary Capability, Extraordinary Responsibility. A commentary on the current uses, predicted trajectory, and the risks and limitations of unqualified and unconstrained Artificial Intelligence use in expert evidence in dispute resolution.The principal risk facing expert evidence is not that AI will replace experts. It is that AI will allow individuals lacking genuine expertise to produce outputs that superficially resemble expert analysis.Artificial Intelligence is the most useful business tool that I have seen in over 30 years. It is also, without qualification, one of the most dangerous. That paradox is the subject of this commentary.
What is an Expert Witness & What is an Expert Witness Not?
  • FEATURED
  • DISPUTES
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What is an Expert Witness & What is an Expert Witness Not?

What an Expert Witness Is - and what one is not.

Duties, qualification, and the experience that actually matters - in arbitration and in litigation.

The modern starting point is Folkes v Chadd (1782). The engineer John Smeaton’s opinion on whether a sea-bank had caused the silting of Wells harbour was rejected at trial; the Court of King’s Bench held it admissible and ordered a new trial. He was received not as an advocate, but as a source of specialised knowledge the court did not possess. Almost two and a half centuries later the rationale is unchanged. A tribunal determines what a contract requires. An expert explains how a transmission network operates, how a turbine commissioning programme is sequenced, whether a delay was technically foreseeable, or whether a storage system performed to accepted engineering standards. Learned Hand put it in 1901: how can the jury judge between two statements, each founded upon an experience confessedly foreign in kind to their own? They cannot,  which is why who the expert is matters as much as what the expert says.

The duty of independence is long established at common law. The classic modernrestatement is The Ikarian Reefer: the expert provides independent assistance to the tribunal and should never assume the role of an advocate. The six duties in the commentary are distilled from the Ikarian Reefer, CPR Part 35 and Article 5 of the IBA Rules on the Taking of Evidence.

Expert selection has traditionally emphasised professional qualifications, industry standing and prior testifying experience. Those remain relevant. But none substitutes for expertise directly matched to the issue in dispute.

For parties and their lawyers, selecting the wrong expert is rarely just an evidential problem. It affects pleadings, settlement leverage, cross-examination strategy and, ultimately, the prospects of success.

The principal risk is not that AI replaces experts. It is that AI lets people without genuine expertise produce outputs that resemble expert analysis at a time when genuinely sector-specific expertise can be difficult to source. Superficially, the two may appear difficult to distinguish. Under cross-examination they are not. The question is not whether the expert used AI, but whether the expertise exists independently of it. In Ferlito v Harbor Freight Tools, the court declined to exclude an expert who used AI. He wrote from decades of experience first and used the tool only to verify.

The quality of a decision on a technical dispute can rise no higher than the quality and relevance of the expert evidence on which it rests. That is the whole of the argument. Arbitration’s authority rests on party consent and on confidence in the quality of its awards. Where the evidence underpinning an award is materially mismatched to the issues, that confidence erodes, and with it the legitimacy the forum depends on. It is fundamentally a decision-quality problem and ultimately a confidence problem for the arbitral process.

Download the pdf for the full commentary

What is an Expert Witness & What is an Expert Witness Not?

  • 19 August 2026
Commentary
Disputes
Expert Practice
Arbitration
What an expert witness is - and what one is not. ‍Duties, qualification, and the experience that actually matters - in arbitration and in litigation. The modern starting point is Folkes v Chadd (1782). The engineer John Smeaton’s opinion on whether a sea-bank had caused the silting of Wells harbour was rejected at trial; the Court of King’s Bench held it admissible and ordered a new trial. He was received not as an advocate, but as a source of specialised knowledge the court did not possess. Almost two and a half centuries later the rationale is unchanged. A tribunal determines what a contract requires. Learned Hand put it in 1901: how can the jury judge between two statements, each founded upon an experience confessedly foreign in kind to their own? They cannot, which is why who the expert is matters as much as what the expert says. The duty of independence is long established at common law. The classic modernrestatement is The Ikarian Reefer: the expert provides independent assistance to the tribunal and should never assume the role of an advocate. The six duties in the commentary are distilled from the Ikarian Reefer, CPR Part 35 and Article 5 of the IBA Rules on the Taking of Evidence. Expert selection has traditionally emphasised professional qualifications, industry standing and prior testifying experience. Those remain relevant. But none substitutes for expertise directly matched to the issue in dispute.For parties and their lawyers, selecting the wrong expert is rarely just an evidential problem. It affects pleadings, settlement leverage, cross-examination strategy and, ultimately, the prospects of success. The principal risk is not that AI replaces experts. It is that AI lets people without genuine expertise produce outputs that resemble expert analysis at a time when genuinely sector-specific expertise can be difficult to source. Superficially, the two may appear difficult to distinguish. Under cross-examination they are not. The question is not whether the expert used AI, but whether the expertise exists independently of it. The quality of a decision on a technical dispute can rise no higher than the quality and relevance of the expert evidence on which it rests. That is the whole of the argument. Arbitration’s authority rests on party consent and on confidence in the quality of its awards. Where the evidence underpinning an award is materially mismatched to the issues, that confidence erodes, and with it the legitimacy the forum depends on. It is fundamentally a decision-quality problem and ultimately a confidence problem for the arbitral process. Download the pdf for the full commentary
SENTINEL INTELLIGENCE REPORT  ·  QUARTERLY INTELLIGENCE

Quarterly Intelligence.

Quarterly intelligence for institutional clients, lenders, and legal counsel. Sourced from arbitral institution data, regulatory filings, MDB project disclosures, and practitioner commentary. Seven editorial pillars. Published quarterly. Institutional-grade intelligence — not aggregated news.
01

APAC dispute statistics and arbitral institution caseload trends

02

Renewable energy EPC delivery — claims, COD failures, and commissioning disputes

03

Frontier & emerging market governance — Mongolia, Indonesia, Vietnam, and Central Asia

04

EPC contract developments — FIDIC, bespoke, and emerging market forms

05

Project finance and MDB trends — lender requirements, bankability, and DFI frameworks

06

Regulatory and policy developments — grid codes, tariff structures, PPA evolution

07

Expert witness practice — IBA Rules, SIAC 2025, tribunal procedure, and independence standards

Quarterly Intelligence.

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