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

1.    INTRODUCTION

This article addresses some of the differing assumptions and expectations regarding managing party appointed experts in the pre-hearing phase.

The role that arbitral tribunals play, and the expectation as to what role arbitral tribunals should play, in managing the expert process is changing from the traditional ‘hands-off’ to a more active ‘hands-on’ role.  This could lead to a mismatch of assumptions and expectations between the arbitral tribunal and counsel.

Traditionally, the arbitral tribunal may have set the timetable and provided some guidance in the procedural order as to the form of the expert report, but it was left to the parties’ counsel to manage and present the experts individually.  For arbitrators, this was often sub-optimal. They were left to evaluate and synthesise conflicting testimony that, as well as expressing conflicting views, may not even have addressed the same questions, may have been based on different assumptions, and may have used different methodologies.

Similar frustrations were felt with the expert process in court litigation in common law jurisdictions and these have resulted in innovations that have since spread to arbitration. In England, following the report by Lord Woolf, in Australia, in Singapore and in Hong Kong the courts have made it clear that the duty of the party-appointed expert is to the court, not to the parties, and either the court rules and/or specific expert codes of conduct impose a code of conduct on party appointed experts.   Judges in England and Australia actively case manage the expert evidence.  Innovations such as expert conclaves, joint expert reports and concurrent evidence have become standard in these jurisdictions. 

While the arbitral process has the inherent flexibility that allows for the introduction of such innovations, in doing so the arbitral tribunal should be conscious of obtaining the consent of the parties, and this is where differing expectations can come to the fore.  While some parties and counsel are uncomfortable with the arbitral tribunal taking on a greater role in the management of the experts, others are expecting the arbitral tribunal to do more.