Soft-Law Guidance for the Use of "Experts" in International Arbitration - Chapter 7 - Soft Law in International Arbitration - Second Edition
REKHA RANGACHARI has served as the Executive Director of the New York International Arbitration Center (NYIAC) since 2017. In her role at NYIAC, Ms. Rangachari collaborates with stakeholders and thought leaders in the space to advance global scholarship and best practices; she offers educational programming, events, and trainings; and operates world-class hearing facilities in Manhattan. Ms. Rangachari is actively engaged with the arbitration community. She serves as Member of the New York City Bar’s Inter-American Affairs Committee and Chair of its Arbitration Subcommittee, Member of the New York State Bar Association (NYSBA) International Section’s Executive Committee and Co-Chair of its International Contracts and Commercial Law Committee, Member of the American Bar Association (ABA) Section of Dispute Resolution and interlocuter for its Podcast Series, and Fellow of the American Bar Foundation (ABF). In addition, she is Board Member of ArbitralWomen (AW) and leads its Cooperation and Global Events Committees, Co-Chair of Racial Equality for Arbitration Lawyers (REAL), Member of the Equal Representation in Arbitration (ERA) Pledge Young Professionals Subcommittee, and Member of the Campaign for Greener Arbitrations. In parallel, Rekha maintains an active connection to academics as Associate Editor of the Juris Investment Arbitration Conference Volumes, Adjunct Professor at Seton Hall Law School, and Peer Review Board Member of the American Review of International Arbitration (ARIA) at Columbia Law School.
DR. KABIR DUGGAL is an attorney in Arnold and Porter's New York office focusing on international arbitration and public international law matters, serving both as arbitrator and mediator. He is recognized as a “Chartered Arbitrator” (the highest ranking for arbitrators) by both the Chartered Institute of Arbitrators and the Asian Institute of Alternative Dispute Resolution. He also frequently serves as an expert on international arbitration and public international law matters. He is also a passionate advocate for diversity, equity, and inclusion issues and frequently writes and speaks on these issues. Dr. Duggal is also a Lecturer-in-Law at Columbia Law School, an adjunct Professor at Fordham Law School, and a Course Director and a Faculty Member for the Columbia Law School-Chartered Institute of Arbitrators Comprehensive Course on International Arbitration. He also acts as a Consultant for the United Nations Office of the High Representative for Least Developed Countries (UN-OHRLLS) on the creation of a novel "Investment Support Program." Dr. Duggal works closely with the U.S. Department of Commerce's Commercial Law Development Program (CLDP) as an expert and has undertaken capacity-building workshops in Georgia, Kosovo, Bosnia & Herzegovina. He has also conducted training and capacity-building sessions for several Governments including Colombia, Saudi Arabia, Myanmar, India, Philippines, among others, on public international law and dispute resolution matters. He also serves on the Federal Republic of Somalia’s New York Convention Task Force as well as the WTO Negotiating Team (International Board). He has published over 60 articles and has spoken at over 300 arbitration events all over the world. He is also the Co-Founder of REAL (Racial Equality for Arbitration Lawyers), a non-profit seeking to create greater representation in international arbitration. He is a graduate of the University of Mumbai, University of Oxford (DHL-Times of India Scholar), NYU School of Law (Hauser Global Scholar), Leiden Law School (2019 CEPANI Academic Prize), and is currently pursuing an SJD Degree from Harvard Law School. Dr. Duggal is admitted to practice law in New York, District of Columbia, England & Wales (as a Barrister), and in India.
Originally from Soft Law in International Arbitration, Second Edition
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Introduction
Arbitral rules typically provide guidelines on the procedural aspects of an arbitration and address matters including venue, language of arbitration, and the constitution of the tribunal, among other things. However, these rules are often silent when it comes to the taking of evidence, often leaving the matter to the discretion of the tribunal. This can be contrasted with domestic law, where there often are detailed rules on evidence.
The scope of a tribunal’s discretionary power covers a wide array of evidentiary issues, including matters such as:
1. deciding the relevancy and admissibility of evidence;
2. directing either party to provide additional evidence;
3. determining the materiality and weight of any evidence; and
4. ordering a witness to attend an arbitration hearing to provide oral testimony.
Since the arbitral rules typically are silent on these and other evidentiary matters, parties make recourse to soft law instruments to guide the evidentiary process. The scope of these soft law instruments includes matters like document production, fact witnesses, and expert witnesses.
This chapter will discuss the most significant of these soft law instruments, with a specific focus on expert evidence.
Broadly defined, an expert is a person who has technical and/or specialized knowledge on an issue and may assist the tribunal in resolving complex or technical questions regarding that issue during an arbitration. For example, an engineer may act as an expert witness and assist to discuss the technicalities involved in a dispute over a breach of building specifications. Similarly, an accountant may also act as an expert witness and help the tribunal in assessing financial statements. The involvement of experts may raise a plethora of legal issues: who is an expert, how is the expert report prepared, can a party cross-examine an expert, etc. Since arbitral rules are silent on the issue, soft law guidance is needed to provide assistance.