Originally from Expert Evidence: Conflicting Assumptions and How to Handle Them in Arbitration - ASA Special Series No. 46

1.    INTRODUCTION

The role of experts has become a fundamental one in dispute resolution proceedings, and arbitral proceedings in particular. This is because arbitration proceedings are increasingly complex, calling for expertise that arbitrators, still traditionally chosen from the legal world, do not necessarily master. Experts’ appointment to opine on specialized aspects of a case is, therefore, almost inevitable. The final decision, nonetheless, is not in their hands; instead, through their conclusions, experts largely contribute to the decisions that arbitrators themselves have to take.

With this being said, it becomes more necessary to choose the most appropriate method in the presentation and assessment of expert evidence. But what is appropriate in this respect varies, as international arbitration is exposed to more than one legal cultures. That which is accepted by one legal culture is not necessarily recognized by another. Specifically, the common law culture prefers the party-appointed expert solution, as opposed to the civil law one which views tribunal-appointed expert evidence more proper. There is, therefore, no standard solution. Indeed, an arbitral tribunal enjoys the discretion, usually after consulting with the parties, to choose the method that is the most appropriate for a case and that assists it in the best way to render an optimal decision.

It is, nonetheless, the case, that the proponents of the common law approach defend it in strong terms without always objectively looking at the case of other approaches, the tribunal-appointed expert in particular.  Therefore, and in line with the spirit of international arbitration and the need to safeguard a balance between all differing cultures, I will look, with the present contribution, at the case of tribunal-appointed experts. I will begin by recalling the principle itself (section 1 below), continue with the presentation of its main applications (section 2 below) and end by offering a brief assessment of the situation (section 3 below).