There is a long-standing debate in international arbitration whether or not party-appointed experts can usefully be independent and how much weight should tribunals give to evidence of party-appointed experts. This paper submits that a discussion focused on the independence of party-appointed experts is misleading and unproductive. Alternatively, the focus of the international arbitration community should be on how to ensure and maintain party-appointed experts’ impartiality.
1. PARTY-APPOINTED EXPERTS ARE NOT ONLY A COMMON LAW CONCEPT BUT ARE ALSO USED IN CIVIL LAW JURISDICTIONS
The use of party-appointed experts, which is originally a common law concept, has become the preferred method of presenting expert evidence in modern international arbitration practice.
Although civil law jurisdictions may not be as comfortable as common law jurisdictions with the concept, most have a tendency to accept and make use of party-appointed experts.
For example, in Turkey, which is a civil law jurisdiction, although the norm is to use tribunal-appointed experts, there is room for the parties to present evidence through party-appointed experts. Under the Turkish International Arbitration Law, it is set out that;
“The arbitrator or the tribunal may decide to appoint one or more experts to submit a report on issues determined by the Tribunal… Unless otherwise agreed, if requested by one of the parties or deemed necessary by the Tribunal, experts shall attend the hearing upon invitation after they have presented their report in writing or orally. In such hearing, the parties may put questions to the tribunal-appointed experts and present experts that they have appointed in relation to the subject of the dispute.”