Complex, technical disputes in arbitration often require expert analysis, to assist an arbitration tribunal in understanding the issues to be resolved, and to answer specific questions required for a fair and accurate resolution of a dispute. The expense, burden and time commitment required for expert analysis, however, represent potential limits on the efficiency of the arbitration process. This chapter addresses some of the alternatives available to parties, their counsel, and the tribunal, in structuring expert analysis to maximize efficiency.
I. Goals in Expert Analysis
An arbitral tribunal (individual arbitrator or arbitrator panel) often needs help in understanding technical issues in a case (accounting, engineering, valuation and more, depending on the case). The tribunal’s mission is to decide the matter, fairly and efficiently. The role of an expert thus generally is not to opine on the ultimate issues in the case (that is the tribunal’s function), but to address subsidiary questions (such as the proper accounting for certain transactions; the engineering implications of a particular design; the alternative potential valuations for a particular asset—again depending on the needs of the case). An expert may also perform specific functions (such as review of voluminous data sources, and on-site or laboratory testing of conditions) that are beyond the ken of the tribunal, or otherwise not suited to conventional evidentiary submissions. Experts may also be called upon to explain complex technical issues, or to summarize points of foreign law.