Over the last ten years, BCLP’s International Arbitration Group has conducted a number of surveys on issues affecting the arbitration process: conflict of interest (2010), delay (2012), document production (2013), choice of seat (2014), the use of tribunal secretaries (2015), increasing diversity on arbitral tribunals (2017), unilateral arbitrator appointments (2018), cyber-security in arbitration proceedings (2019) and rights of appeal (2020).

This year we wanted to consider the use of party-appointed experts in international arbitration. 

The use of party-appointed experts in international arbitration has been the subject of debate for many years.  Meanwhile, the volume of cross-border transactions continues to rise and a growing number of organisations and industries are embracing arbitration as a dispute resolution mechanism. As a result, disputes submitted to arbitration have become increasingly technical, with substantive and procedural issues requiring expertise in a broad range of disciplines.  This raises questions over the role of party-appointed experts in the arbitration process.

The party-appointed expert is a recognised feature of the common law tradition, where the parties are free to select, instruct and pay experts to give evidence on their behalf.  This is in contrast to the civil law tradition in which, in spite of developments in recent years, has traditionally left fact-finding to the tribunal and favoured the use of tribunal-appointed experts.  

The primary role of experts is to assist the tribunal on matters within his or her expertise and that may be outside the expertise of the tribunal.  However, in practice, the role of expert can be far broader. In many cases, experts are retained to provide advisory and arbitration support at an early stage, before becoming a testifying independent expert.

The party-appointed expert treads a delicate line.  On the one hand, he/she owes contractual duties to the appointing party and, naturally, there is a desire to support that party and potentially secure repeat instructions.  On the other hand, he/she has a duty to remain independent, assist the tribunal and avoid acting as advocate for the party appointing him/her.  In spite of this, the use of party-appointed experts remains very much the norm in international arbitration.  So much so that, in cases where a tribunal appoints an expert, it is not uncommon for parties to retain their own experts to review and comment on a tribunal-appointed expert’s report.

All this has led to concerns that party-appointed expert reports have become increasingly expensive vehicles by which the parties reargue their respective cases.  To make matters worse, the perception that party-appointed experts are essentially hired guns or advocates in disguise has in turn had an adverse impact on the evidential weight that tribunals give to their evidence.  None of this is good news for experts, the parties who appoint them or the efficiency of the arbitration process.

This year, we want to examine the perceived problems with party-appointed experts.  Are there practical steps that could or should be taken to mitigate them and, if so, who should take the lead in implementing them?  Are there better alternatives for adducing expert evidence in arbitration?  In other words, what can be done to save the party-appointed expert?

We would like to obtain your views on these and other related issues by requesting your responses to the following questions:

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* 1. Please indicate the nature of your involvement in international arbitration. Please tick as many boxes as appropriate.

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* 2. In what region/s do you work? Please tick as many boxes as appropriate.

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* 3. Is your legal training in a common law system or a civil law system?

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* 4. In what sector/s do disputes you are involved in tend to arise? Please tick as many boxes as appropriate.

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* 5. In the last 10 years have you been involved in an arbitration involving party-appointed expert witnesses in any of the following disciplines. Tick as many boxes as appropriate.

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* 6. In your opinion, how important is it that parties in an international arbitration have the right to rely on the evidence of a party-appointed expert? Please tick one box.

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* 7. In your opinion, is it appropriate for a party-appointed expert to have a dual role as an expert adviser in the early stages of an arbitration and as a testifying expert at a later stage?

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* 8. In your opinion, should issues of foreign law be addressed in expert testimony or in legal submissions? Please tick one box

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* 9. Do you agree that party-appointed experts are “hired guns” or “advocates in disguise”?

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* 10. It has been suggested that broader disclosure necessary in order to promote greater independence and objectivity on the part of experts and to limit lawyer influence over the content of expert testimony. On the topic of disclosure, with which of the following statements do you agree.

  Agree Disagree
An expert report should include a description of the instructions given to the expert.
A copy of the instructions given to the expert should be annexed to the expert report.
An expert report should include a statement setting out the financial terms of the expert’s engagement.
Party-appointed experts should be required to disclose draft reports.
Party-appointed experts should be required to disclose working papers.
Rules allowing disclosure of counsel-expert communications would promote greater independence and objectivity on the part of party-appointed experts.
Rules allowing disclosure of counsel-expert communications are unnecessary as arbitral tribunals are generally capable of determining when a party-appointed expert is not being objective in their testimony.
Rules allowing disclosure of counsel-expert communications would have an adverse effect on the quality of expert evidence.
Rules allowing disclosure of counsel-expert communications would result in increased costs and inefficiency by increasing the use of “shadow” experts.

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* 11. In your opinion on a scale of 1 to 5 (1 is the most desirable; 5 is the least desirable), how would you rank the following alternatives to party appointed experts?

  1 2 3 4 5
Tribunal-appointed expert selected by the tribunal.
Tribunal-appointed expert selected by the parties.
Single joint expert selected and appointed by parties.
No expert evidence – employees of parties to give technical evidence.
No expert evidence – tribunal to use own expertise.
No expert evidence – party-appointed arbitrators to provide technical expertise.

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* 12. Please tick the reasons for keeping party-appointed experts with which you agree. Please tick as many as apply.

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* 13. Please tick the reasons for getting rid of party-appointed experts with which you agree. Please tick as many as apply.

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* 14. In your opinion, should there be greater control over the use of party-appointed experts in international arbitration?

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* 15. In your opinion who should have primary responsibility for controlling the use of party-appointed experts.

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* 16. Please indicate which of the following measures you think would be desirable to adopt in relation to the use of party-appointed experts in arbitration. Please indicate whether you have seen any of these measures used in practice.

  Do you consider this measure desirable? Have you seen this measure used in practice?
An arbitral tribunal should refuse to allow parties to rely on the evidence of party-appointed experts if it considers expert evidence is unnecessary.
An arbitral tribunal should only allow parties to rely on the evidence of party-appointed experts if both parties agree.
An arbitral tribunal should approve the instructions given to party-appointed experts.
An arbitral tribunal should determine the scope of work of party-appointed experts and specify the issues they should address.
If there is a limited pool of experts in a particular field, an arbitral tribunal should direct the parties to retain a single joint expert.
An arbitral tribunal should streamline expert evidence on issues of liability and quantum to avoid evidence being prepared on issues which may fall away if liability is not made out.
An arbitral tribunal should schedule expert evidence earlier in the procedural timetable to allow party-appointed experts more time to narrow and agree issues.
An arbitral tribunal should require party-appointed experts to report directly to the tribunal on progress made to reach agreement on the issues within the scope of their reports.
An arbitral tribunal should direct that the parties bear their own costs of retaining party-appointed experts.
An arbitral tribunal should place a cap on the recoverable costs of party-appointed experts.

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* 17. Have you had direct experience of an arbitral tribunal refusing to allow a party’s request to appoint an expert?

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* 18. Have you had direct experience of an arbitral tribunal directing that party-appointed experts give evidence concurrently (hot-tubbing or conferencing), rather than being cross-examined individually?

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* 19. On the topic of witness-conferencing or hot-tubbing, with which of the following statements do you agree?

  Agree Disagree
Hot-tubbing is more efficient than experts giving concurrent evidence.
Hot-tubbing improves the quality of expert evidence.
Hot-tubbing is only effective if it is conducted in accordance with an agreed protocol.
Hot-tubbing is most effective if it is led by the tribunal.
Hot-tubbing is most effective if it is led by the experts.
Hot-tubbing is most effective if it is led by legal counsel.

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* 20. Please indicate which of the following sanctions you think an arbitral tribunal should adopt in cases where a party-appointed expert fails in his or her duty to remain independent and assist the tribunal. Please indicate whether you have seen any of these sanctions used in practice.

  Do you consider this sanction desirable? Have you seen this sanction used in practice?
An arbitral tribunal should refuse to admit the evidence of a party-appointed expert who fails in his/her duty to remain independent and assist the tribunal.
An arbitral tribunal should disregard the evidence of a party-appointed expert who fails in his/her duty to remain independent and assist the tribunal.
An arbitral tribunal should give limited weight to the evidence of a party-appointed expert who fails in his/her duty to remain independent and assist the tribunal.
An arbitral tribunal should impose cost sanctions in respect of a party-appointed expert who fails in his/her duty to remain independent and assist the tribunal.
An arbitral tribunal should publicly censure a party-appointed expert who fails in his/her duty to remain independent and assist the tribunal.

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* 21. Comments or thoughts on this topic

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* 22. Contact Information 
Please note – should you choose to enter your contact information you may be contacted by BCLP in relation to the results of the survey. This may include providing a quote for the report containing the findings, receiving a copy of the report or invitations to related events. For further information on how we may process your personal data please see our Privacy Notice.

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