In international arbitrations, litigators from the U.S. often find a bit of the familiar mixed in with equal or greater bits of the unfamiliar. One of the elements of international arbitration that is typically unfamiliar to U.S. litigators is the phenomenon of Tribunal-appointed experts in lieu of party-appointed experts. (This is part of a series of posts and articles offering advice “from the trenches” concerning the use of experts in international arbitration.)
The use of Tribunal-appointed experts in lieu of party-appointed experts may be mandated, permitted, or prohibited by the parties by agreement before or during an arbitration. Typically, if not prohibited by agreement, the choice in this regard is left to the discretion of the Tribunal itself.
In assessing whether a Tribunal is likely to appoint its own expert, counsel might look to the background of the arbitrators. The provenance of the arbitral Tribunal members, and in particular its chairman, may be predictive. Generally, arbitrators with a civil law background are more likely to appoint their own experts, while arbitrators with a common law background are more likely to rely on the parties to appoint experts. (Conversely, if a Tribunal decides that it will appoint experts instead of relying on party-appointed experts, that may indicate that the panel is inclined toward an activist inquisitorial (civil law) style of adjudication, rather than toward an adjudicative refereeing (common law) style.)
The leading organizations that administer international arbitrations have a significant number of commercial arbitration rules that address the use of Tribunal-appointed experts. See International Chamber of Commerce (“ICC”) Art. 25(4); London Court of International Arbitration (“LCIA”) Art. 21; International Centre for Dispute Resolution (a part of the American Arbitration Association) (“ICDR”) Art. 25; Singapore International Arbitration Centre (“SIAC”) Art. 26. However, those rules provide limited detail concerning procedures.
There is therefore room for the parties to agree on procedures regarding the use of Tribunal-appointed experts. Some guidance in that regard is provided in the useful IBA Rules on the Taking of Evidence in International Arbitration (2010) (the “IBA Rules”), Art. 6. (The IBA Rules inferredly favor the use of party-appointed experts, but they recognize the availability of Tribunal-appointed experts as well or instead.) Indeed, the parties are free to adopt IBA Rules Art. 6, as is the Tribunal, which may also use those rules as guidelines.
The selection of a Tribunal-appointed expert may be made independently by the Tribunal, or the selection may come from among nominees by the parties.
In any case, counsel should seek agreement that candidate experts should be vetted before they receive their assignment from the arbitrators. Among other things, candidate experts should be required to disclose potential conflicts, prior employments, prior testimonial and advisory experience, copies of their prior writings, and copies of their prior testimony.
Finally, once an expert is appointed by the Tribunal, the parties may request (or, by agreement, require) that they have an opportunity to comment on and contribute to the formulation of the expert’s assignment.