The use of party-appointed experts in international arbitration has been the subject of debate for years. The primary role of experts is to assist the arbitral tribunal on matters within his or her expertise and that may be outside the expertise of the arbitrators. In practice, the role of experts can be far broader. In some cases, experts are retained to provide advisory and other support to the client and/or arbitration counsel team at an early stage, before becoming a testifying independent expert or in parallel with the work of a separately engaged testifying expert.
Increasingly, women are acting as either advisory or testifying experts in international arbitration after decades of the expert field being male dominated.
The party-appointed testifying expert treads a delicate line with respect to independence. On the one hand, the expert is contractually engaged and is paid for their time performing services on the case. Naturally, the expert may want to support the party and potentially receive subsequent engagements. On the other hand, the testifying expert has a duty to remain independent, assist the arbitral tribunal and avoid acting as advocate for the party that appointed the expert.
Recently, there has been concern that party-appointed experts and/or expert reports have become expensive vehicles by which the parties reargue their respective cases. There is also a perception by some that party-appointed experts are essentially advocates in disguise, which has had an adverse impact on the evidentiary weight that some arbitral tribunals give to party-appointed experts’ evidence.
The 2021 survey prepared by BCLP’s International Arbitration Group focuses on the perceived problems with party-appointed experts. Are there practical steps that can or should be taken to mitigate the perceived problems with party-appointed testifying experts? If so, who should take the lead in implementing such steps? Are there better alternatives for adducing expert evidence in arbitration? What can be done to preserve the role and usefulness of the party-appointed testifying expert?
This initiative is led by ArbitralWomen member Claire Morel de Westgaver, who commented, “Having the views of various stakeholders including arbitration users, arbitrators and expert witnesses themselves will help identify realistic solutions and ultimately continue to shape the future of international arbitration in an ever more complex world where expertise is bound to become increasingly significant.”
The expert evidence survey will benefit from input from a diverse cross-section of the international community, including female practitioners, arbitrators, clients and experts.
You can participate in the survey here.
Submitted by Dana MacGrath, ArbitralWomen President and Omni Bridgeway Investment Manager, Legal Counsel