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Arbitration, Mediation & Alternate Dispute Resolution

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Relevant codified procedural rules with respect to the use of experts in international arbitration are scarce, and the parties and the arbitrators therefore get to create the pertinent rules of the road in each individual proceeding.
In “Arbitration Agreements – Incorporation by Reference of an Arbitration Clause in in Another Document is a Simple Matter . . . Isn’t It?”,  we describe how the simple incorporation by reference of a provision in another document becomes a bit less simple when a Federal District Court says that something more is required – i.e., express notice that the other document contains an arbitration agreement among other provisions. 
In this article – “Pros and Cons of Hot Tubbing in International Arbitration” – we describe the nature of “concurrent evidence” or “witness conferencing” of experts (i.e., hot tubbing) in international arbitration, and the pros and the cons of employing such a procedure. 
In this article – “Drafting Sensible and Effective Multi-Step ADR Provisions” – we provide practical advice regarding factors to be accommodated in fashioning multi-step ADR provisions that are (1) useful and (2) likely to be enforced by the courts.
Practice and procedure in international arbitration regarding the selection of an expert witness has elements that are familiar and those that are unfamiliar to a U.S.-trained litigator.
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.
An expert witness obviously should be thoroughly prepared to give oral testimony in an adversarial proceeding, and frankly that can best be done by counsel. Is that always permitted in international arbitrations? 
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. (Whether they acknowledge or treat the latter as such, alas, varies by practitioner.) For example, expert witnesses may be appointed (a) by the respective parties (“Party-appointed” experts), (b) by the arbitral panel (“Tribunal-appointed” experts), or (c) with input from each.
With the 9th Circuit’s late summer anti-class action waiver decision, the circuit split widened over the issue of whether employers can require employees, through an arbitration agreement, to waive their rights to bring class or collective actions against their employer.
Drafting an arbitration clause for your agreement is a straightforward matter most of the time. Sometimes it can be as simple as incorporating by reference an arbitration provision in another document or agreement. Easy peasy. Or is it?

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