Originally from The MENA Leading Arbitrators’ Guide to International Arbitration

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I. INTRODUCTION

The use of legal experts in arbitral proceedings has been on the rise. This is due in part to the continued expansion of international cross-border trade and the effect of contracting parties being from different jurisdictions. The governing laws of the underlying agreements differ from contract to contract. In international commercial arbitrations, the law of the seat (i.e., the place) of arbitration may be different from the law governing the substantive issues of the case.  Arbitral tribunals are often not familiar with the law(s) that may determine the outcome of cases; they therefore rely on legal experts for clarifications and answers pertaining to those laws.

This chapter examines the role of the expert witness in arbitration, with a particular focus on the legal expert witness, and the legal expert’s interface with many of the other arbitration stakeholders. Arbitration stakeholders include inter alia: (i) the arbitral tribunal; (ii) the arbitration institution/forum; (iii) the parties in dispute; (iv) counsel for the respective parties; (v) the proposed/nominated experts; and (vi) the experts who are actually appointed and present their evidence. The chapter covers the mandate of the legal expert, her/his duties and responsibilities, the expert report, joint expert reports/testimony, and required procedures. The approach of the courts to legal expert evidence—which differs from the approach taken by arbitral tribunals—is also reviewed. The authors share their knowledge and experience in the United Arab Emirates (UAE) with respect to expert witness evidence.  The last sections of this chapter provide commentary on areas of law in the greater Middle East and North Africa (MENA) region, on which legal expert witnesses are most frequently called upon to provide evidence/testimony.   The authors take this opportunity to thank Nazanin Esfandnia, a paralegal at Global Advocacy and Legal Counsel, for the extensive legal research she conducted for this article.