When the parties’ appoint their own experts, the case may boil down to “a battle of experts” in which each side’s experts produce conflicting opinions, leading to lengthy cross-examinations and oral hearings. The procedure not only increases costs and causes delay in arbitration proceedings; it does not really help the Tribunal in deciding the issues, which is the whole purpose of appointing experts anyway.
To mitigate the foregoing, UNCITRAL Rules of Arbitration, IBA Rules on Taking of Evidence and the Protocol of Practice and Standards Committee of the CIArb have developed certain rules applicable to production of evidence and opinions by party appointed experts. The parties shall nonetheless remain careful about which rules they agree to be applicable to the proceedings because they differ from one another in many significant aspects.
The CIArb Protocol applies only to party-appointed experts. It is not intended to cover tribunal-appointed experts or single-joint experts and has been structured along the lines of IBA Rules on Taking of Evidence. In order for the Protocol to apply, parties must expressly agree that that expert evidence will be adduced according to this Protocol.
For instance, one special aspect of the CIArb Protocol is that it makes it mandatory for party-appointed experts to have a meeting before the report is produced. The purpose of the meeting is to establish points of agreement between between the experts.
The party appointed experts should bear in mind that their duty is to assist the arbitral Tribunal in deciding the issue in respect of which they have been appointed. Experts are obliged to be independent and impartial, not biased and not to act as advocates of the parties that appointed them.
Prior to agreeing upon the application of the Protocol, the Parties should bear in mind that the requirements of Article 6 thereto expect the experts to be overtly cooperative and transparent with each other with the method, tests and analysis that they will conduct in the provision of their opinion; and even prepare draft outline opinions prior to the meeting.
As per Article 6 (b), the experts’ shall submit a report to the parties and the Arbitral Tribunal which: a) contains those issues upon which all experts agree b) the tests and analyses which they all agree need to be conducted and the agreed manner for conducting them c) issues upon which they disagree and a summary of their reasons for disagreement d) tests and analyses in respect of which an agreement has not been reached and a summary of their reasons for disagreement.
Although the role of the Protocol can be of tremendous assistance to the arbitral tribunal, but only if both parties play ‘fair’.
But if one party complies genuinely with this approach, shows the transparency it requires and is candid about its methods and findings however the other party’s participation in the protocol is not so genuine then the protocol can be damaging to the party whose expert is willing to disclose all its cards. Whereas communications between the experts are without prejudice, there is no guarantee that a party will not take advantage of these communications during cross-examinations. There is always a risk of finding that your opponents are ‘dirty players’.
Therefore, caution must be taken and parties should advise their experts to strike a balance between an expert’s goal to serve the tribunal and remembering that what he says or does can be held against the appointing party by even handedness opponents. The fair player appointed expert may find him/herself falling into traps and tricks employed by the opponent party.
FAREYA AZFAR | LAW BLOGS 