There is a wealth of information about international arbitration (IA) for practitioners and parties considering this form of dispute resolution. Regular surveys provide insight into developing trends in IA, preferred locations for hearings and the factors that support IA as a method of dispute resolution. However, one aspect of the IA process that has received less attention is the role of expert witnesses and preferences for their use.

We fielded market research to address the use of experts in IA. This article describes the results to five main questions about the use of expert witnesses: On what types of disputes are expert witnesses used? What are the most important factors to take into account in selecting an expert? What factors affected the experience of working with an expert? In what settings are experts most useful? How can experts be more effective?

An invitation to participate in the survey was emailed to 1280 potential respondents, of which 148 (11.6 percent) started and 110 completed the survey. Potential respondents were identified via a number of sources, including through established arbitration centres and organisations, as well as through personal contacts and snowball sampling (names provided by those completing the survey). Before completing the survey, all participating respondents were given appropriate information to provide informed consent and agreed to a privacy notice to comply with the EU General Data Protection Regulation (GDPR).

Most participants identified themselves as external counsel or arbitrators. By descending order, participants focused on the industry areas of energy (oil & gas, power and renewables), construction, banking and finance, mining, life sciences and insurance. Other reported industries included M&A, telecoms, real estate and intellectual property (IP). The main arbitrated issues cited by survey respondents included commercial breach of contract, joint ventures, mergers and acquisitions, investment treaties and IP disputes. European venues were most commonly used by participants, followed by those in the US, Canada and Asia.

Apr-Jun 2019 issue

Charles River Associates