The Importance of Having Expert Witness Testimony in Software Dispute Resolution
In a proceedings of dispute resolution, be it litigation or arbitration, the primary role of an expert witness is to express his independent expert opinion based upon the information provided. Such expert opinion provides an input of guidance to the judge or arbitrator in attaining a decision, particularly complex cases involving highly technical assessment.
An expert witness can be unilaterally appointed by any disputant, or jointly by both disputants. The primary duty is to assist the Court or Arbitral Tribunal on the matters within his expertise and this duty overrides any obligation to the party from whom he has received instructions or by whom he is paid.
An Expert Witness is required when it is necessary to have opinion evidence to assist resolving a dispute, and such opinion may thus lead to an early resolution of the dispute. An Expert Witness may be involved in court or arbitral proceedings and may be called to give evidence.
The Malaysian High Courtís interlocutory decision in Bank Simpanan Nasional v Cyber Business Solutions Sdn Bhd (Suit No: D-22NCC-279-2009) marks a significant milestone in the software dispute resolutions. In the past, it was widely practiced that the jurisdiction of arbitration derives from the agreement of the disputants. Notwithstanding that, the Court gave a consent judgment in favor of Cyber Business Solutions Sdn Bhd that pursuant to the Section 24A of the Courts and Judicature Act 1964, in the absence of arbitration agreement between the disputants, a High Court possesses power to refer litigation to arbitration even if any party objects.
The significant messages brought up by this case in relation to software disputes are that:
- Software development and implementation could be a complex undertaking which involves both hard-skills and soft-skills of software professionals at specifically different domain knowledge.
- The learned judge was of the view that taking into consideration of the case involved scientific investigations relating to computer and software and prolonged examination of voluminous documents, the real issue before a matter could be referred under Section 24A will depend on the complexity of facts and cannot be of law.
When a dispute is acknowledged as confronting factual complexity such as in software development and implementation, the use of expert witness testimony is inevitable to provide advice to judge or arbitrator.
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