Originally from International Arbitration Checklists - 3rd Edition

The use of expert witnesses to provide evidence on technical issues is a worldwide common feature of commercial arbitration. However, the way in which experts are selected, appointed and provide their evidence can differ greatly.  This chapter first considers when expert evidence is needed and goes on to consider the different ways in which such evidence can be obtained and presented to an arbitral tribunal. 

When Expert Evidence Is Needed

To many, the idea that expert evidence is needed to assist an arbitral tribunal is anathema to the entire concept of arbitration.  This is because one of the often-quoted benefits of arbitration over litigation is that the parties are able to choose one or more arbitrators with the requisite technical or industry expertise for the dispute in question.  This is certainly the case in arbitrations concerning certain specialized industries.  For example, in an arbitration concerning the quality of a consignment of coffee conducted under the Coffee Trade Federation Rules, the arbitrator(s) would be able to determine quality issues concerning the coffee without recourse to any independent expert. However, in most international arbitrations involving business and commercial disputes, it has become the norm for parties to prefer arbitrators with legal training and judicial or quasi-judicial experience. This is understandable given the importance, in such cases, of efficient management of the arbitral process and the correct application of complex rules of procedural and substantive law.

While experienced lawyers may be able to assess the weight to be applied to factual evidence and to apply the relevant legal principles to that evidence, they often require assistance to enable them to reach conclusions on technical issues.  Areas in which tribunals commonly require expert assistance include engineering, science, trade practice, accounting and “foreign” law (i.e., the law of a jurisdiction in which the members of the tribunal are not themselves qualified).  Such experts provide their expert opinion based on the facts as presented to them.  While it is customary for tribunals to be uninterested in the opinions of fact witnesses, the expertise of an expert witness renders his/her opinion relevant and admissible.