“Explore the crucial role of expert evidence in International Commercial Arbitration. Learn about the requirements for presenting expert evidence, the duties of expert witnesses, and the considerations in appointing experts. Delve into judicial precedents that shape the use of expert evidence and the balance between party-appointed and tribunal-appointed experts. Understand the significance of expert guidance in resolving disputes, especially in industries like construction and infrastructure.”
Expert Evidence means the evidence which is reasonably required to resolve the proceedings. While applying for such an impression the party must identify the field of expertise he wishes to rely upon and the identity of the expert. This is a general requirement that the report should be given in the form of a written report unless directed by the court. The task of an expert witness is to express an opinion concerning the matter and form an output so as to form relevancy to the litigation. The expert witness can give evidence of factual matters of which he has first-stage knowledge and he cannot give hearsay evidence unless it is admissible under the Civil Evidence Act, of 1972. The experts have limited immunity from proceedings for negligence. The question of the admissibility of expert evidence is a two-stage consideration. The first is whether the evidence comes within the provisions of Section 3 of the Civil Evidence Act 1972. The second stage is the nature of the evidence sought to be given.
WHO CAN BE APPOINTED AS AN EXPERT IN INTERNATIONAL COMMERCIAL ARBITRATION?
There are several providers both firms and independent practitioners offering expert services for international arbitrations. For a conservative choice, a party seeking to instruct an expert may refer to the GAR 100 EXPERT WITNESS FIRM POWER published by Global Arbitral Review which lists prominent expert firms by looking at the volume and value of two years’ worth of hearings and at “reputational clout”. For instance in 2021, FTI Consulting, Compass lexicon and Kroll made it to the top 3. HKA, PwC and Deloitte LLC are also included in the index amongst other firms. In certain jurisdictions, arbitrators may appoint assessors to review the assessment of the whole data pertaining to construction/engineering contracts. The work of the assessor should not be disclosed to the parties unlike the evidence and report of an expert.
The party-appointed expert is commonly found in common law jurisdictions and tribunal-appointed experts are commonly found in civil law jurisdictions. Party-appointed experts are the norm in international arbitrations. Tribunal-appointed experts appear far less frequently in practice normally in situations where parties have not appointed their expert yet the arbitral tribunal considers that it would benefit from expert analysis or in situations where the parties have produced conflicting expert reports. A party may appoint an expert to advise the party behind the scenes or an independent witness before the tribunal.
1) Cala Homes (South) Ltd vs Alfred McAlpine Homes East Ltd (1995)- An expert has an express duty to help the court on matters within his expertise and his duty overrides any obligation to the person from whom he receives instructions or by whom he is paid.
2) Lay land vs Fairview New Homes PLC (2003)- The circumstances in which a party will be permitted to adduce his own expert evidence following the appointment by a court of joint experts.
3) Liverpool Roman Catholic Diocesan Trust vs David Goldberg QC- The court held that since the question was of the law, expert evidence would be excluded because that is within the expertise of the court and further although the evidence qualified under Section 3 of Civil Evidence Act 1972, the court would disregard it because the expert was unable to fulfill the role of expert relationship due to his close relationship with the defendant.
4) University of Warwick vs Sir Robert McAlpine – The observation of the judge on the role of expert witnesses was all obiter (that is not essential to the decision and therefore not strictly binding). In this case, negligent design and construction offer useful guidance on the role of experts.
The role of Expert Evidence in International Commercial Arbitration is to find and prove the material fact involved in the case. The experts are only there to advise rather than to deliver opinions on the case. The guidance of experts is necessary for various areas of science, art, foreign law, service and so on. The Construction and infrastructure industries are emerging as sectors with the largest number of disputes globally. Consequently, serious thought must be given to retain such arbitrations involving domestic parties and to attract foreign ones. These disputes invariably involve taking expert evidence on some point or the other, and parties tend to balance the cost and efficiency of the process. In such cases, hot tubbing strikes a fine balance and has, in fact, been specifically recommended for construction cases in various jurisdictions. It has not only helped in improving the quality of the expert evidence but has proven to be much more expeditious than the traditional methods of evidence-taking.