Experts often play a pivotal part in the resolution of complex disputes. The London Court of International Arbitration (“LCIA“) recently released a note discussing the ways in which experts are involved in international arbitration. The Note serves as a useful reminder that each type of expert participation in the arbitral process presents opportunities for the effective resolution of a dispute. The Note also provides some guidance on how to get the most out of expert involvement. Whilst it is only a short foray into a broad subject matter, the Note is a further example of how international institutions are increasingly seeing their role as offering the parties more insight and practical guidance to encourage the development of an effective and efficient process.
The LCIA’s reflections on the role of experts
Given the variety of parties and subject matter involved in arbitrations, experts are used differently from case to case. The LCIA observes how the traditional role of independent experts, in which they are appointed by the parties, draft expert reports for the tribunal and subsequently testify at a hearing, is being supplemented by a number of different expert roles in order to aid arbitral decision-making and improve the quality of arbitral awards.
The note continues with a brief overview of some of the ways in which experts are being used in LCIA arbitration, together with an explanation of challenges that this can present. These additional expert roles include: advising behind the scenes to the client, legal team or another expert on record (referred to in the report by the colloquial terms “shadow” or “dirty” experts, although the report notes the invaluable role such experts can play); as a tribunal appointed expert; or as an expert tribunal member. While acknowledging that expert determination is an alternative contractual form of dispute resolution to arbitration, the note also touches on expert determination and some of the more complicated drafting points relating to the use of expert determination clauses and arbitration clauses.
The LCIA suggests that, “while each method presents opportunities and unique benefits, it is important to recognise their respective shortcomings“. The note therefore concludes with some ways in which the parties can optimise their use of experts. First, it is suggested that both counsel and arbitrators should develop their familiarity with issues upon which experts are frequently asked to opine, particularly quantum (which features in a vast majority of cases). Second, experts themselves should ensure that they are prepared to facilitate a discussion with the tribunal, as well as other experts involved in the proceedings.
Experts are an important part of the arbitral process – their evidence is integral in clarifying technical points which will enable the tribunal to deliver a well-reasoned final award. Parties and counsel in particular will get the best out of experts if they:
- think carefully about whether expert evidence is really needed and whether the tribunal will be best served by party or tribunal appointed experts in all the circumstances of the case;
- start the appointment process of a party appointed expert early to identify the right candidate;
- agree a clear list of issues to be considered in expert evidence at an early stage;
- tailor the approach taken with the expert depending on their previous experience or background and plan ahead for the workstream;
- make sure the expert is properly and clearly instructed and their duty to assist the tribunal is explained and understood;
- ensure the expert has all the relevant documents and information;
- keep in regular communication and provide quick and meaningful responses to the queries which the expert raises throughout the arbitration;
- act consistently with the expert’s role in the proceedings and avoid the appearance of a “hired gun” expert;
- work with the expert to advise on whether the report produced can be understood by a non-expert or someone reading it in a second or third language (as appropriate);
- consider whether agreeing to “hot-tubbing”, an expert “meet and confer” or an expert joint statement may aid the efficient resolution of the dispute; and
- make good use of the opportunity to test the conclusions the counterparty’s expert has reached in his or report with the party-appointed expert.
For further information, contact Chris Parker, Partner, Hannah Ambrose, Professional Support Consultant, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.