Originally from Between East and West: Essays in Honour of Ulf Franke

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What are the ethical duties applicable when an expert witness testifies before an arbitral tribunal? This article explores that question.

Judicial practice in many countries establishes whether (1) a party-appointed expert witness owes a principal duty to the party who engaged the expert or to the court, (2) whether the expert must render objective and impartial opinions in presenting evidence or is instead an advocate for the engaging party and (3) whether the expert has a duty to disclose relationships affecting objectivity or impartiality. Arbitration laws and arbitration rules, however, are generally silent on these issues. The Swedish Arbitration Act, for example, says nothing at all about the conduct of a party-appointed expert witness. The UNCITRAL Model Law on International Commercial Arbitration is similarly silent about the duties of party-appointed experts. This silence stands in contrast with, for example, Part 35 of the U.K. Civil Procedure Rules (Experts and Assessors). Rule 35.3 of the CPR expressly states:

1. It is the duty of an expert to help the court on the matters within his expertise.
2. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

The associated Practice Direction for CPR Part 35 further specifies that “expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation” and that “an expert should assist the court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of an advocate.” 

The approach taken in the U.K. courts is not, however, universally accepted. Many civil law judicial systems, of course, prefer tribunalappointed experts rather than party-appointed experts. A number of common law judicial systems also follow a different path.