USING EXPERT WITNESSES TO RESOLVE COMPLEX ISSUES AND PROVIDE INDEPENDENT PERSPECTIVE

An expert is a person who provides specialised knowledge on technical matters and thereby helps a tribunal resolve such matters. These technical matters are not readily understood by a general audience and by providing specialised knowledge, a tribunal can arrive at a more informed decision. In international arbitration, expert testimony can take a range of different forms, from damages or valuation experts to construction experts to experts in domestic law, that may be applicable to the dispute. It is standard to include financial or damages experts in most cases unless the calculation of damages is obvious and straightforward (e.g., a figure is provided for in a contract).

In international arbitration, an expert can typically take two forms. The most standard form is for each party to appoint an expert and for the experts to respond to each other. This is described as ‘party-appointed experts’. The second form is for a tribunal to appoint an expert (either in addition to or in lieu of the party-appointed expert). This is described as a ‘tribunal-appointed expert’.

Most arbitral rules do not provide much guidance on experts. Soft law instruments like the International Bar Association (IBA) guidelines on the ‘Taking of Evidence’ or the Prague Rules on the ‘Efficient Conduct of Proceedings in International Arbitration’ provide some guidance on the use of experts.

Appointing and challenging experts

The most common method is for each party to appoint its own expert, underscoring party autonomy in the arbitral process. Each expert will prepare an ‘Expert Report’ which accompanies the main pleadings by counsel. It is common for the pleadings to draw on the Expert Report. This process also permits the opposing experts to engage with each other. The experts who produce an Expert Report can be called to testify before the arbitral tribunal and be subject to cross-examination by opposing counsel.

Apr-Jun 2022 issue

New York International Arbitration Center (NYIAC)

Arnold & Porter Kaye Scholer LLP