This article is based on material presented at the 22nd ICCA congress, “Legitimacy: Myths, Realities, Challenges”, Miami, 6-9 April 2014.
The role of the expert witness in domestic and international arbitration is a subject that has been often written about, debated, scrutinized, and reviewed. Experts, being in the role of “neutrals” with the obligation to assist arbitrator(s) in reaching decisions on issues that require special expertise, have come under suspicion as being advocates in disguise for the party retaining them. Further, published decisions from arbitrators have failed to adequately identify those experts, or attributes of expert reports, that they find helpful and / or unhelpful and thus there is no formal feedback mechanism for the arbitration community to identify those experts, or qualities found in expert reports, which are perceived to be inappropriate.
Notwithstanding the well-known role of the expert, and their duty to the trier of fact, experts find themselves pulled in different directions by the various factors that influence their behaviour. The chart below summarizes these various forces: