August EWJ 24 - Flipbook - Page 96
The Use of Experts in
International Arbitration
by Peter Smith, Legal Director, Dispute Resolution and Hannah McDonald, Senior Associate
www.charlesrussellspeechlys.com
adequate chance to present its case. The result is that
the rights of parties to appoint experts arises in the
procedural order, either agreed between the parties
and the tribunal on specific issues of fact, or law or
following an application by one of the parties to the
tribunal.
Introduction
Proving your case may require relying on the
evidence of experts to give their professional opinion
on technical issues. The use of experts in disputes is
longstanding, both in courts and arbitration, with
records from an Admiralty case heard in England in
1345 showing reliance on an expert to determine if a
wound was fresh. Historic court cases aside, expert evidence in arbitration (both domestic and international)
is ubiquitous.
Some arbitration rules expressly permit the use of
experts. Article 25 of the ICC Rules 2021 permits the
tribunal to establish the facts of the case by all appropriate means, and allows the tribunal to hear experts
appointed by the parties or by the tribunal itself. Articles 20 and 21 of the LCIA Rules 2020 contain
detailed rules on experts too.
International arbitration generally recognises two
sorts of experts, namely those appointed by the parties (a practice drawn from the common law), and
those appointed by the tribunal (a practice drawn
from the civil law).
A party may have already spoken with a potential
expert when identifying the scope of issues on which
expert evidence is to be given; more often, the parties
agree general areas for expert evidence, and then
each search for an expert. Potential experts can be
found from online databases of experts, some managed for commercial purposes, and from guides that
rank experts in their fields.
Party-appointed experts are found in arbitration far
more often than tribunal-appointed ones, whose appointments are limited to cases where the tribunal
considers it would benefit from expert evidence but
the parties have failed to appoint their own experts, or
(even more rarely) where the parties have appointed
experts but the tribunal believes it needs its own expert to assist with its consideration of the evidence of
the party-appointed experts.
Care should be taken to select an expert without any
conflict or bias, and who has had experience in giving
evidence and being cross-examined before a Tribunal.
In this article we will focus on party-appointed
experts, how they are chosen and give their evidence,
and what the future may hold for them.
Neutrality of party-appointed experts
A problem with the common-law approach to experts
is that they can be seen as ‘hired guns’ instructed to
fight a party’s case. They are directly hired and paid
for by the party, and the expert’s neutrality is thus, to
an extent, a fiction.
The need for experts
Experts differ from advocates and witnesses in that they
can give their opinion on the matters on which they are
instructed, usually in the form of a report and then by
answers to questions posed by the parties at the final
hearing. Insofar as their answers are arguments, they
are submissions confined only to certain areas.
Various aspects of the expert evidence process can
counter this:
l Transparency, for instance in the qualifications of
the expert, in their instructions and the format, substance and then exchange of reports, and the production of a single joint report following a meeting
with the opponent’s expert.
A benefit of arbitration is that the tribunal can consist of
specialists in a field pertinent to the dispute. However,
rarely if ever is an arbitrator an expert in every material field, including on the substantive dispute, foreign
laws, and the calculation of damages. Certain professions act as experts in international arbitration more
than others, including construction professionals (different types of engineers and surveyors), foreign
lawyers, and accountants (as experts on quantum).
l The procedural laws of the seat of the arbitration
and the arbitral rules may give details on neutrality
requirements.
Selection and appointment
Under most arbitral rules the tribunal has control of
the procedure and whether the parties can call expert
evidence, keeping in mind the importance of
maintaining a fair procedure that gives each party an
l Professional rules and guidance such as the
Chartered Institute of Arbitrators Protocol for the Use
of Party-Appointed Expert Witnesses in International
Arbitration, Article 4 of which stresses that “An expert’s
opinion shall be impartial, objective, unbiased and
EXPERT WITNESS JOURNAL
l Cross-examination by the opponent and tribunal,
including ‘hot tubbing’ (discussed further below).
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