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In the event, Eurobahn decided not to ignore arbitration proceedings. On 18th September 2019, Leopald informed Flambeau that Eurobahn has appointed Lim Yang as their arbitrator. The two party-appointed arbitrators agreed that Dr Thackeray should preside. The programme for the subsequent proceedings was discussed. Amongst the matters raised by the parties was to permit each side to call witnesses to address the matter of the performance of the release mechanism. Required: (a) Explain the difference between the evidence that you would expect to receive from witnesses of fact and that from expert witnesses. (9 marks) (b) What duty of care do experts owe and to whom? How does this differ from that for witnesses of fact? (8 marks) (C) As the Presiding Arbitrator of the Arbitral Tribunal, write out the part of your order to the parties that deals with expert witnesses. Start your answer with "I order and direct that..." (8 marks) 5 Scenario In March 2018, Autoparte Verbieste LLC ("Verbieste") an agro-machinery company of Brussels, Belgium, entered into a contract with Loch Leven Statefarms PLC ("Lochleva farm equipment seller of Glencoe, Scotland, which sells farm equipment to its clientele in the United Kingdom The contract was for the supply of 50 "Farmquip" units by Verbieste to Lochlex. Each "Farmquip" unit is comprised of a mini tractor pulling an automatic manure spreader. Verbieste designs and assembles these units at its main factory in Brussels, Belgium. Different parts of the Farmquip units were being fabricated for Verbieste by a variety of companies situated worldwide. The Contract with Lochlev was in Verbieste's standard terms and included very simple dispute resolution provisions. The critical clauses being as follows: 18.3 If any dispute arises from, out of or in connection with this contract it shall be determined by binding arbitration 18.5 No arbitration proceedings shall be commenced unless there has first been an attempt at amicable settlement 18.6 Any arbitration shall be conducted in accordance with the UNCITRAL Arbitration Rules. 18.8 Should any institutional activity be necessary it shall be carried out by the Chartered Institute of Arbitrators (CIArb). Under the contract, the order was to be executed in two deliveries each of 25 units. The first order was delivered on 7th September 2018 and the remainder to be by 11th January 2019. In December 2018, reports reached the head office of Lochlev that farmers were experiencing difficulties in releasing the manure spreaders from the tractor units. By the due date for the second delivery, 18 of the first 25 spreader units had suffered the difficulty. Moreover, shortly after the remaining units were delivered it emerged that several of them also suffered the same problem. Verbieste sentits engineers to investigate and they attributed the problem to distortion of the release mechanism. This occurred when units were used to deliver manure to farm locations with rough temporary access roads. The engineers said the Verbieste units were not designed to cope with off-road work unless access road conditions were reasonable. Lochlev contended there was nothing in the Contract to that effect and considered that it should have been expected that the units would need to travel off-road and on rough terrain regularly. Verbieste and Lochlev had a long relationship which they want to preserve despite the emerging dispute. After extensive discussions, Verbieste conceded Lochley's point that the units should be able to cope with rough terrain) but insisted that this was without admission of liability. On this basis, on 5th May 2019 a compromise settlement was agreed. Verbieste rectified the problems with the release mechanisms of the Farmquip unit and paid Lochle 2M for loss of working time and related costs. Verbleste then turned its attention to recovering its own costs from Eurobahn, a German firm that had provided the release mechanisms which Verbieste had incorporated into the units. The Contract between Verbleste and Eurobahn contained no dispute resolution provisions but stated inter alia): "The supplier (Eurobahn) shall be aware of the terms and conditions of the contract of Verbieste with its customer (a copy is available upon request) and shall comply therewith as may be applicable. The supplier shall hold Verbieste harmless from any action by its customer arising from or as a consequence of acts or omissions of the supplier. supplier." On 19th May, Verbieste wrote to Eurobahn: "You will be aware that we hold you responsible for the fault in the spreader release mechanisms supplied by you for the 50 Farmquip units we recently provided to Lochlev. We have had to pay Lochlev 2M in order to reach a settlement with them and expect you to reimburse us that sum together with our own estimated costs and expenses of 1.2M - total, . 3.2M - within 21 days of the date of this letter. Our invoice is enclosed." Correspondence ensued in the course of which Eurobahn denied liability. On 30th June 2019 Verbieste's attorneys, Flambeau wrote: "We represent Verbieste and our client requests payment within 14 days from today of the sum of 3.2m as invoiced to you with their letter dated 19th May 2019. Failure to do so will result in our commencing arbitration proceedings on behalf of Verbieste under the terms of the contract between them and yourselves without further notice. The claim will be for the sum of 3.2m plus interest." By the time the letter reached Eurobahn's offices they had commenced a local three week works holiday as was customary in the south of Germany where they were located. Consequently, there was no reply and on 16th July Flambeau wrote: "You have ignored our letter dated 30th June and consequently we have instigated arbitration proceedings. We propose the following persons should comprise the tribunal - Mr Pierre Elliot of Brussels Mr Giscard Trudeau of Luxembourg Ms. Carla Strausse of Brussels" Upon their return, Eurobahn on 26th July 2019 wrote: "We do not consider that we are required to participate in arbitration proceedings because, 1. There is no provision for arbitration in the contract between us 2. Even if we are wrong in that respect the notice of arbitration is defective. Consequently, there is no arbitration running and we do not intend to agree or disagree with the proposed tribunal. If you pursue your course of action our lawyers, Leopalds, will seek a Court Order in Germany declaring the proceedings void