Originally from Soft Law in International Arbitration, Second Edition

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This Guideline sets out the current best practice in international commercial arbitration on the appointment and use of party-appointed and tribunal-appointed experts. It pro-vides guidance on:

i. Powers to appoint an expert (Article 1);

ii. Assessing the need for expert evidence (Article 2);

iii. Methods of adducing expert evidence (Article 3);

iv. Procedural directions for the expert(s) (Article 4); and

v. Testing of the experts’ opinions (Article 5).

This Guideline should be read in conjunction with the CIArb Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration (Appendix I) which details a regime designed to govern the use of party-appointed experts in international arbitration in an efficient and economic manner. It addresses matters such as independence and privilege, as well as detailing what should be included in a written expert re-port. Parties may adopt the Protocol either in whole or in part, or arbitrators may use it as guidance as to the directions required to manage expert evidence taking into account the particular circumstances of each arbitration.

Preamble

The resolution of many disputes referred to international commercial arbitration frequently involves deciding complex technical issues which may require specific knowledge or experience. To address this need, the parties may decide to appoint arbitrator(s) with the requisite expertise. Alternatively, or in addition to, (1) each party may wish to appoint their own experts; (2) parties may jointly agree to appoint a single ex-pert; (3) arbitrators may wish to appoint a single expert instead of the parties doing so; and/or (4) arbitrators may wish to appoint a tribunal-appointed expert in addition to the party-appointed expert(s).

The first of these methods is the most frequently used in practice as the parties’ right to appoint an expert witness is an integral part of their right to submit evidence and to be heard. The appointment of a single joint is rare as the parties will not have any basis on which to challenge the expert opinion, if it is unfavourable to them. In any event, parties should be directed to restrict expert evidence to that which is reasonably required to resolve the issue or issues in dispute by being given detailed directions regarding the precise manner in which such evidence should be adduced before the arbitrators and tested by the opposing party.

The calling of expert evidence can result in considerable expense and lead to the arbitrators having the difficult choice between the opposing views of party-appointed experts. To avoid conflicting expert evidence and to reduce the costs and speed up the process arbitrators may recommend that the parties should instead jointly appoint a single expert or propose that the arbitrators would appoint a single expert instead. If deemed necessary and appropriate, arbitrators may choose to appoint their own tribunal-appointed expert in addition to the parties’ expert(s). An advantage of appointing a single joint expert is that it may be a more cost-effective method of adducing expert evidence which makes it particularly attractive in cases where the cost and delay of resolving competing expert opinions would be disproportionate to the sums in dispute. Furthermore, instruct-ing a tribunal-appointed expert in addition to the party-appointed experts will generally add to the cost of the arbitration and may possibly delay the proceedings. However, this may be considered appropriate where the arbitrators require assistance to decide differences of opinion between the party-appointed experts, particularly on complex technical issues.

This Guideline addresses the issues that arbitrators should take into account when considering how to deal with expert evidence.