In every arbitration proceeding, there are specific issues in dispute, out of which the parties' claims arise. Both parties will have conflicting answers to those issues, and thus, they will provide contradictory evidence and account of what happened. Each party would give evidence to support its contentions; such evidence could be documentary or in the form of witnesses of facts.
However, for the when, what, why, and how of disputes, the arbitrators and parties approach expert witnesses. Expert evidence in arbitration may also be needed if the issues involve scientific, technical, and specialized knowledge; or to assess the cause and quantification of damages.
Parties have the right to adduce expert evidence, but cannot be ordered to do so.
When an arbitrator deems that expert evidence is necessary to make a reasoned decision on a specific issue in dispute, the arbitrator is empowered to appoint an expert. Such an expert would be a ‘tribunal-appointed expert’ and shall be treated as such.
The arbitrator should send the expert’s terms of reference to the parties as soon as possible. The “terms of reference” should be prepared in consultation with the parties. It must outline the crucial issues that the expert is to report.
The terms of reference should separate the issues an expert can determine and matters that are exclusively for the arbitrator to decide.
The arbitrator may direct the parties to provide such information and documents to the expert as required and permit the expert to seek further information and material.
Expert witnesses prime duty is to the arbitrators, and not to the party which appointed them. Experts must produce an objective and even-handed analysis of the issues they are to testify.
An expert who acts more like an advocate and fails to demonstrate objectivity does not favour the appointing party. If a party wants its experts’ reports are taken seriously and have credibility before the arbitrator, they ought to ensure that the experts understand that their duty is towards the arbitrator and not the party that appointed them.
The substance of Expert Reports
An expert’s report is always in writing and treated as ‘read.’ Therefore, if either party requests an evidentiary hearing, the expert would go straight into cross-examination. No examination in chief would take place.
From an expert’s report, the arbitrator wants to know the facts that form the basis of the expert’s opinion and which led the expert to determine causation or quantification of damages. Expert evidence should cite the books and articles relied upon and the expert’s reasons for rejecting other experts’ contrary opinions.
Once the expert submits the written report, the parties are allotted or may otherwise request time to submit their comments on it.
Parties’ commentary on the expert’s report may also include requests for:
an oral hearing to cross-examine the expert.
that the expert clarifies particular aspect(s) of his findings; or
arbitrator’s permission to produce evidence from a party-appointed expert(s).
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