Keywords; expert testimony, international arbitration, ICC
Expert testimony, while not a traditional component of evidence in international arbitration, has certainly become the norm—particularly with respect to damage calculations and issues of industry conduct. In recognition of that trend, the International Chamber of Commerce (the "ICC") recently enacted new Expert Rules. These rules replace the ICC's 2013 "Rules for Expertise."
While experts are common in international arbitration, the procedures for appointing experts and presenting expert testimony vary widely. In light of arbitration's hybrid nature, it is not uncommon to find a mix of common- and civil-law practitioners working within the same dispute resolution proceeding, whether as advocates or decision makers. In civil law jurisdictions, independent experts are typically appointed by the court, while in common law jurisdictions, experts are typically party-appointed. Moreover, occasionally, either an international arbitration tribunal will bring on an independent, tribunal-appointed expert to assist it in resolving conflicts between opposing party-appointed experts, or the parties will jointly appoint an independent expert.
Even beyond appointment, procedures for expert presentation range from traditional direct and cross-examination to expert conferencing or "hot-tubbing" whereby all of the experts involved in a matter meet to discuss issues. In expert conferences, generally, the experts are allowed to ask each other questions, as are the tribunal and opposing counsel. International Arbitration is nothing if not flexible. So long as experts remain separate from the tribunal (unless explicitly appointed to the panel), and are available for questioning by the parties in some form, there is wide berth to determine appropriate procedures for a given dispute.
In an effort to maintain this flexibility, in three separate sets of rules, the ICC clarifies its services and rules with respect to:
(1) Proposing Experts and Neutrals (Proposal Rules): At the request of a court, a tribunal, a party or the parties jointly, the ICC will make non-binding proposals for experts or neutrals. "Neutrals" may include adjudicators, mediators, neutral evaluators or dispute board members. This service is available even outside of the context of a dispute, "[p]arties might wish to obtain an expert opinion on an issue of importance to them in the ordinary course of business." For assistance in a dispute...