Expert evidence in International Arbitration: Tribunal appointed experts

In every arbitration proceeding, there are certain issues in dispute out of which the claims of the parties arise. Both parties will have conflicting answers to those issues and thus, they will provide conflicting evidence and account of what happened. Each party shall give evidence to support their contentions, which can be in the form of documents and witnesses of the fact. However, when the issues in dispute not only involve what happened but also why and how it happened, experts’ opinions and evidence may be needed for the arbitrator to find an answer to those issues and make a determination. Expert evidence will also be needed if the issues involve scientific, technical, and specialized knowledge; or to assess the cause and quantification of damages. Arbitrator appointed expert Even if the arbitrator deems that expert evidence is required, the arbitrator cannot instruct the parties to appoint experts. Instead, the arbitrator is empowered to appoint its own independent expert, unless otherwise agreed by the parties. The arbitrator should send the expert’s terms of reference to the parties as soon as possible. The terms of reference should be prepared in consultation with the parties and outline the list of key issues that the expert is to report upon. The terms of reference should clearly separate the issues an expert can determine and issues that are exclusively for the arbitrator to determine. There are cases where the Parties may be perfectly represented and have already appointed or prepared their own experts, yet the arbitrator decides to appoint its own expert. This decision should be assessed against a number of factors, such as duplication, costs, delays and the tendency of the arbitrator to rely only upon its own expert at the end. Although this would be the topic of my next article, it is pertinent to briefly emphasize here that an arbitrator would not and cannot simply set aside the evidence of party-appointed experts, because one of the requirements of a valid arbitration award is that it must contain reasons. The standard of reasoning that an award should contain is also high, therefore, the arbitrator cannot only simply say that he decided to choose the opinion of expert A over expert B, but also explain the reason for that decision and the facts and the facts that lead him to that reason. [1] The arbitral tribunal may also direct the parties to provide such information and documents to the expert as may be required by them, and permit the expert to seek further information and material by the parties. Another reason why an arbitrator will prefer its own appointed expert is its perceived independence from the influence of the appointing party. However, as mentioned, that may also lead the parties to fear that in the event of conflicting evidence of party-appointed experts, the arbitrator would simply favor the opinion of its own expert, while fulfilling the requirement of reasoning to be contained in a valid award. This dilemma has been redressed by the introduction of certain rules governing the use of party-appointed experts, as will be elucidated in this article below. What should the report contain and what happens after? The drawback of having only one tribunal-appointed expert is that its report may not expound, or not emphasize upon From an expert’s report, the arbitrator not only wants to know the expert’s opinion but also the facts that formed the basis of that opinion and that led him to the findings in relation to the causation and quantification of damages. The books and articles upon which he relied, and the reasoning for its rejection of another expert’s opinion, if that was known prior to the preparation of his report. An expert’s report is always in writing and is taken as ‘read’ therefore if an evidentiary hearing is requested by either party, the expert goes straight into cross-examination and no examination in chief is conducted. Once the expert’s report is produced and delivered, the parties are allotted or may request a period of time to serve written comments on the report. These written comments may include a request for an oral hearing to question the expert’s finding; a request that the expert should expand or clarify a particular aspect of his report, or that the party wishes to appoint its own expert to conduct further investigations and file a supplementary report of its own. Expert witnesses, whose prime duty is to the tribunal, and not to the party, the Expert must produce an objective and even-handed analysis of the issues about which they are to testify. An expert who acts more like an advocate and fails to demonstrate objectivity is not doing any favor to the appointing party. If a party wants its experts’ reports to be taken seriously, have credibility, and be relied upon by the Arbitrator, they ought to ensure that the experts understand that their duty is towards the arbitrator and not the party that appointed them.