Rules of Evidence in International Arbitration

Nathan D; O'Malley; LLM

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CHAPTER 6 Tribunal-appointed experts and inspections

Introduction

6.01 Civil-law jurisdictions have historically made great use of court-appointed experts. One may further observe that in the practice of international arbitration such procedures are permitted as well,1 and are more generally accepted as part of international judicial procedure.2 This method of adducing evidence is inquisitorial in nature as it is carried out at the direction of the tribunal, and not the parties.3 In this respect, the tribunal-appointed expert is an individual who advises the tribunal through the creation of a report, and perhaps also through oral testimony that is entered into the evidentiary record of the arbitration. The process of appointing an expert poses several issues for consideration, in particular the manner of appointment and the instructions to the expert, the means and method of compiling a report, and the extent to which the expert’s findings may be adopted by the tribunal. 6.02 Another procedure that is inquisitorial in nature and is a well-established feature in international arbitration is the inspection or site visit.4 This method of adducing evidence calls for the tribunal, or the expert on behalf of the tribunal, to undertake a visit to a site5 or area (such as a boundary) or to otherwise inspect an item (such as machinery), which is relevant to the arbitration. The underlying rationale for a site visit is to allow the tribunal

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or the expert to obtain a first-hand understanding of an important issue in the case. This purpose notwithstanding, because the conduct of a visit or inspection is something which involves the active participation of the tribunal in the process of adducing evidence, reflection on whether the process will afford the parties a fair and equal opportunity to be heard on the matter is generally warranted. 6.03 The IBA Rules cover both of these issues. In particular, article 6 of the rules provides the procedure for appointing an expert as well as guidelines concerning the content of the report and other rules affirming the tribunal’s control over the procedure. Inspections and site visits are mentioned in articles 6.3 and 7 of the IBA Rules, and provide guidance on the conduct of such procedures. These and related issues are further discussed below.

Appointment and mandate of tribunal-appointed expert

Article 6.1 2010 IBA Rules:	The Arbitral Tribunal, after consulting with the Parties, may appoint one or more independent Tribunal-Appointed Experts to report to it on specific issues designated by the Arbitral Tribunal. The Arbitral Tribunal shall establish the terms of reference for any Tribunal-Appointed Expert Report after consulting with the Parties. A copy of the final terms of reference shall be sent by the Arbitral Tribunal to the Parties.
Article 26(1)(a)
UNCITRAL Model Law:	(1) Unless otherwise agreed by the parties, the arbitral tribunal: (a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal;

General discussion

6.04 International arbitrators tend to involve the parties early on in the process of appointing an expert.6 This is made clear by article 6.1 wherein the tribunal is directed to appoint an expert “after consulting with the parties”; an admonition that is both practical, and which some consider a requirement of due process.7 The subjects under discussion

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during such a consultation customarily include the relative need for an expert to be appointed, and may also extend to the question of who the expert ought to be. The former is discussed more fully below. In regard to the latter, the common practice is to call for the comments of the parties on the identity of a prospective expert,8 and also the number of experts to be appointed.9 The practical benefit to arbitrators in following this approach is that it may assist the tribunal in identifying a candidate that is sufficiently neutral and acceptable to both sides, as one tribunal constituted under the ICC Rules noted:

Whether an individual person could “fit the bill” is really highly questionable. It might seem best for counsel to both sides to reflect on a highly reputable and experienced engineering firm which, under its roof, might have a specialist for the technical/ engineering issues and a specialist on the economic side. In any event, the Independent Expert should be seen, and accepted, by both sides, as being truly neutral. It will mean that such Independent Expert will not be seen as having a closer relationship with either one of the Parties. This may not be very easy to find, given the broad networks of the claimant companies.10

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