Originally from Leading Arbitrators' Guide to International Arbitration - 2nd Edition

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I. INTRODUCTION

While it is common for arbitral tribunals to hear expert evidence, arbitrators’ practice with respect to appointment of experts and presentation and assessment of expert evidence varies – often reflecting the civil and common law dispositions of its members. Commonality among panels may be found in their widespread adherence to the IBA Rules on the Taking of Evidence in International Commercial Arbitration (“IBA Rules”), or to the rules specific to an arbitral forum, like the LCIA or ICDR. But even these are composites of civil and common law practices. For example, the widely used IBA Rules allow parties to follow the common law practice of calling their own expert. The IBA Rules also provide for the civil law tradition of the tribunal appointing its own independent expert. Proceedings under the ICC, LCIA, ICSID and UNCITRAL rules commonly feature experts serving in both capacities as well.

The possibility for both parties and the tribunal to call their own experts – and their ensuing interactions – reflect the hybrid nature of international arbitration. Thanks to the flexibility of arbitration as a method of dispute resolution, the manner of presenting expert evidence also varies according to the jurisdictional backgrounds of the panelists, the parties and their counsel. These practices, in turn, impact how arbitrators assess expert evidence. One emerging practice that blends both traditions in the interest of procedural efficiency is expert conferencing. This practice allows both tribunal and parties to participate in a conference with all experts on a particular issue, comparing testimony and asking questions as permitted.

This chapter describes the different methods of expert appointment and presentation of evidence in international arbitrations and the implications of these different methods on how arbitral tribunals assess expert evidence.