Exploring the Legal Considerations within the Mining Industry as an Expert Witness - We ask, how can an expert witness impact mining litigation?
Bara Consulting is a consulting engineering and advisory group actively involved in mining and mineral processing projects globally. Current work extends from expert witness and due diligence through Feasibility Study work to mine development and operations support in Europe, Central Asia, Africa and the Americas. Over the past few years, Bara has delivered on many diverse projects, from narrow vein gold mining in Scotland, massive potash in England, lead-zinc in Spain and Bosnia, iron ore in Ukraine, platinum in Finland, copper in Zambia, to gold and copper-gold in Serbia and Kosovo. Lawyer Monthly recently caught up with Dr. Andrew Bamber, Managing Director of Bara Consulting UK to discuss his involvement in investor-state arbitrations and work as an Expert Witness.
Please introduce yourself to the readers of Lawyer Monthly.
I am a mining and mineral processing engineer with over 30 years’ experience in the industry covering various roles from plant design, construction, and operations, to research, as well as broad-based consulting and advisory work. Not only did I study and now work in mining, but I grew up around mines, from the coal mines of the North East and Midlands of the UK, to gold mines of the Eastern Transvaal and Iron Ore mines of the Kalahari desert. So, not so much a career, but a lifelong love-affair.
What is your professional background and education?
I originally studied as a mechanical engineer, graduating from the University of Cape Town in 1993 with an honour’s degree in mechanical engineering and materials science. After a short stint as a research engineer I completed my Mines Engineering Certificate while working on the South African Goldfields, qualifying as a Mines Engineer in 1996. In 1997, I was transferred to the company’s head office, where I embarked on an initial career in capital project development, involved in design, cost estimation, and construction management for a series of capital projects in nickel, copper, platinum, and chrome. In 2003, I was accepted into graduate school at the University of British Columbia, graduating with an MSc in mineral process engineering in 2005 and then a PhD in mining engineering in 2008.
What are your areas of expertise and professional experience?
My main area of expertise is in process- and process plant design, and the techno-economic evaluation of mining and mineral processing projects in both base and precious metals. As a technologist, I have major specialisations in process technology, including sensor-based sorting, high-pressure grinding, high-speed stirred milling as well as coarse- and fine-particle flotation. As a consultant, I have a wide range of experience designing as well as evaluating mining and mineral processing projects - both open pit and underground - across commodities including copper, nickel, chrome, iron ore, lead-zinc, tin, tungsten and more recently lithium, and across geographies including Chile, through the Americas, to sub-Saharan Africa, the UK, Eastern Europe, the Balkans and Kazakhstan.
When did you start providing expert witness opinion/reports and evidence and how did this come about?
I originally got involved in Expert Witness work while still a PhD student at UBC, having been drafted in to support an opinion in a dispute between two competing process technology vendors. Subsequently, as CEO and CTO of a mining technology company, I was involved firstly in the drafting of, then in the defense of several key filings in a growing family of patents for that company. When I returned to the UK and to consulting in 2018, I was asked to assist the then MD of Bara Consulting in an investor-state arbitration concerning a junior gold project developer and a Central Asian state, acting for the State. Then, on the strength of that combined experience, I led as Expert Witness in an Investor-State patent dispute, then on two Investor-State expropriation matters (acting for the Investor), advised on an Investor-Investor M&A dispute, plus as Expert Witness for the State on an Investor-State operational dispute.
What type of expert witness services do you provide, and to which type of client?
As I mentioned above, I typically act as the Mining and Mineral Processing Expert in mostly Investor-State disputes; perhaps, unlike other companies or Experts, we do not specialize in or focus on representing Investor or State, are equally happy to act for either on a case-by-case basis. A minority of matters are Investor-Investor, while a small number of matters so far have been patent disputes in the field of either mining or mineral processing technology.
What are some of the common challenges you face when working with instructing solicitors or third parties and how do you overcome these challenges?
I would say the most common challenge we face in these matters is bridging the knowledge and practice gap between, for example, ourselves as non-legal technical experts and non-technical legal experts. We work and have worked with fantastic lawyers at the top of their game who really need to grasp the technical gist enough to deliver the legal case, whereas we, as Experts, really need to grasp, at the very least, the merits of the case enough to then deliver strongly on the technical or techno-economic Opinion.
A secondary challenge, in my personal experience, has been - again, as a non-legal technical expert - getting to grips with and perhaps reaching across the table during the Instruction phase to make sure the Instructions are as clear as possible and that we as Experts can then deliver against those Instructions (as readers may well know, poorly instructed matters otherwise strong on merits and jurisdiction can fall down if the Instructions were poorly crafted or executed against.
Apart from quality and depth of knowledge, what do you consider the essential elements of an expert witness report?
I think objectivity and clarity of message are essential in the Expert’s report. In some cases evident bias towards, for example, the Respondent’s case is clear in the opposing Expert’s report, where such bias - whether the report is technically strong or not - totally dilutes the effectiveness and impact of the report. As Sellers’ Inspector Clouseau famously once said, “but the facts, Hercule, the facts!”
What are the challenges and complexities with providing expert opinion on matters concerning investor-state arbitrations and or investor-investor matters?
In Investor-State matters we see two common issues. One issue is that in such cases many of the potential exhibits potentially in possession of the Respondent clearly must have existed at some stage, but are not discoverable as they are either not traceable or completely ‘lost’, which impairs our ability as Experts to then accurately opine. On the other hand, particularly with Investors who may have been at an early stage of corporate and project development at the time, the Investor did not pay enough attention to papering the situation effectively enough at the time, so even though a particular position could be inferred, it cannot be proven because the paperwork (e.g. Accounts, Budgets, or Contracts) were either weakly drafted or entirely non-existent (e.g. ‘handshake’ agreements).
What are your obligations as an Expert Witness, how can an expert witness impact mining litigation and how do you gauge your success and or input?
We believe, as Expert Witnesses, that our primary obligation is to speak truly and objectively to the Tribunal or the Court as the case may be. We are happy to be instructed and to be well-instructed. However, the combination of the facts of the matter as represented in the exhibits, combined with the past knowledge and experience we bring to the table as Experts, by and large, determine the content of our Witness to the Tribunal or the Court. We gauge success in a few ways: how we feel about our report and witness ourselves, the feedback we get from our own counsel, as well as the response of the opposing Witness and Counsel - it is often clear whether points have been scored or games won based on the reactions in the room while providing testimony.
What is the most interesting case you have worked on and why?
We’ve worked on a few that were very interesting, including v. Large Mining co vs State on a patent matter and v. Large Mining Co. vs v Large Mining Co in an M&A matter, v. Large State v. Small Mining Co. in an Investment matter, and Small State v. V.Small Investor (basically a sole trader) in an Expropriation case. Perhaps the most interesting was the State v. V.Small Investor, where the Claimant (for whom we were acting) died, so the case went quiet for a long while but was then resuscitated by his Estate whom we ended up acting for again - but instructed by entirely new Counsel - in the final Arbitration.
Contact
Andrew Bamber
Partner & UK MD
Email: bamber@baraconsulting.co.uk
Tel: +44 (0)7444 86 4046
Published by: www.lawyer-monthly.com - 5th August, 2024
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