The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
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2 Status Of Party Appointed Experts Under IBA Rules On Evidence.
3 CIArb Protocol on Party Appointed Experts.
3.1 Historically Gone a Step Ahead
Iba Rules-At the advent of the increasing scrutiny in the evidentiary aspect of international dispute settlement, reliance on party-appointed expert presents itself as a contentious issue especially in the light of legal vacuum in the model law as well as the institutional rules. This vacuum arises as there is no clear threshold for independence and impartiality of the ‘party-appointed’ experts, the lack of threshold, in turn, affects the integrity of the tribunal and
leads to a dissuasion from the procedure as laid down in ‘conduct of proceedings’.
In this paper, the position of ‘party-appoint experts’ will be analyse under the glare of IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) and
Chartered Institute of Arbitrators Protocol for the Use of party-appointed Expert Witnesses in International Arbitration (CiARB protocol). Though IBA Guidelines and CiArb protocol become binding only upon express consent of the parties they are in
any case referred to by the tribunals as the ‘guiding light’.
The apprehension towards party-appointed experts arises due to the concerns of their independence and impartiality which exposes the tribunal to the substantial risk that they will give partisan evidence as ‘hired gun’ leaving them devoid of the requisite expertise[1]. International Arbitration generally, and the Model law impliedly, confers on the experts a duty of independence with exemplar equivalence to that of the arbitrator [2] Though the LCIA rules 2014 do not impose explicit independence requirement on the party-appointed expert it is the submission of the author that, the same can be au fait when read in consonance with the LCIA rules 1998 and the LCIA Note on experts 2018. This ambiguity invariably steers us towards the above-mentioned rules for guidance.
Though the IBA rules have to be expressly agree upon by the parties to be applicable, they are oftentimes used by the tribunals
to inform their decisions. The importance and relevance of IBA guidelines has been enumerate in the Sierra Case:
““reflect[s] the shared values of the international arbitration in codes of ethics such as those issued by the International Bar Association” and provide illustrations of what the international arbitral community considers to be cases of conflicts of interest or apparent bias”[3]
According to Art. 5(a) IBA Rules, a party-appointed expert should state any past or present relationship with the parties. This provision evidences that independence is essential for the appointment of an expert. The disclosure of the relationship with the parties is a measure to avoid any misguidance of the Tribunal by party-appointed experts as there exists a plausibility that they would exploit their report solely to support their appointer’s arguments. Art. 5 (2)(c) IBA Rules requires a party-appointed expert to submit with their report a statement declaring their independence and impartiality. Overall, it is clear that the IBA Rules set a high threshold for the independence of party-appointed experts.[4] Further, a party-appointed expert stands to get disqualified if he or she is to gain financially from the outcome of the case, this rule reemphasizes
the importance placed on ‘honest and frank’ opinion.
Therefore the aforementioned article enumerates a general duty on
an expert to act independently from the parties and to not advocate for them. The concept of independence encompasses within itself the hierarchy of the duty owed to the different parties to arbitration and ascendancy is always accorded to the tribunal[5].
This article lays down the notion of disclosure which is crucial for establishing the creditworthiness of the evidence,[6] these guidelines not only require the party-appointed expert to disclose the present and past relationships with the appointing party but also his background. Further, they also probe the expert to provide an affirmation of the truth of his expert report.
The general principle of independence is also enshrined in Art.1 CIArb Protocol, which is aligned with the IBA Rules[7] and is recognised as their appropriate supplement[8] Characteristically, Art. 8 CIArb Protocol requires
an extensive and explicit statement by the expert on their independence and duty to assist the Tribunal.
The Protocol not only brings in the much-need clarity to the dearth of interpretive sources but has also been draft in consonance with IBA Guidelines, this structural alignment was done to invite the same wide coverage as that accord to the IBA Rules on Evidence. The travaux preperatories of the protocol highlights the similarity in language between the two making it much easier to connote an interpretation of these guidelines.[9]Further
, the similarity between the two is not only restrict to the language but can also be extend to the objectives and the preamble.[10]
Despite the similarity, the Protocol has “historically gone a step ahead” and has laid out a rather detailed structuring polishing
the current threshold of independence and impartiality. Article 4 of the said Protocol emphasizes the financial independence of the party-appointed expert, however
disregarding reasonable fee given to the experts in exchange of performance of their duties. Such a fee does not vitiate the high standard met out for independence.[11]
Article 4 para 1 of the protocol mandates that the opinion of an expert should be from any encumbrances face
due to the pressures of the dispute resolution process. They should be at liberty to dispense objective and uninfluenced opinions:
“an expert’s duty in giving evidence is to assist the arbitral tribunal to decide the issues in respect of which expert evidence is adduce.[12]
The protocol unequivocally stipulates that prelacy in terms of duty owed is confer to the tribunal and not the parties. Experts are now required to describe their instructions and make a statement of their independence from “the Parties, the legal advisors and the Arbitral Tribunal”[13].
an expert’s opinion should be
independent, objective, unbiased and uninfluenced by the pressures of the dispute resolution process or by any party.”[14]
In place of the affirmation as to the “truth” of their expert report, party-appointed experts must instead affirm that the opinions in his or her expert report are “his or her genuine belief” and not a partisan perspective.[15] The IBA Rules and CIArb Protocol is seen as an attempt to achieve
the benefits of independence promised by the civil law tradition but in the context of the view adopted by the common law countries
which aim to eliminate the risk of influencing expert and ensure their objectivity and independence,
The foregoing discussion not only highlights some of the key issues concerning expert witness in international arbitration but also bring out the glaring lacuna in the existing legal regime. The concerns associated with party-appointed experts centre largely on independence and impartiality of such experts and the role that the arbitral tribunal plays in either disregarding or accepting the evidence presented by them. In the instance where experts are called sparingly and
to ensure the integrity of the proceeding, they are heavily relie upon
by the tribunal during the process of decision making, thereby making it necessary to detach the expert from the partisan view adopted by him.
Not doing so would not only subvert the proceedings but preclude any settlement. The model law and the various institutional rules not only lack comprehensiveness but are also vague in their construal
thus providing ample breathing space to domestic space law to develop their own ‘convenience-based’
interpretation leading to a lack of consensus and uniformity. Therefore
requiring a balance to be sought between parochial ties of an expert to the party and their duty to the tribunal.
[1] Dough Jones, Party Appointed Expert Witnesses in International Arbitration: A Protocol, at Last, 24 ARBITRATION INTERNATIONAL, http://arbitration.oxfordjournals.org; JEFFREY WAINCYMER, PROCEDURE AND EVIDENCE IN INTERNATIONAL 945( Arbitration Kluwer Law International,2012).
[2] 3 PROFESSOR D. MARK CATO, ARBITRATION PRACTICE AND PROCEDURE: INTERLOCUTORY AND HEARING PROBLEMS(Informa Law from Routledge 1999)
[3] Sierra case , Sierra Fishing Company and others v Hasan Said Farran and Anr, England and Wales High Court Case No. [2015] EWHC 140 (Comm) 30 January 2015
[4] Marghitola, Document Production in International Arbitration, 33 INTERNATIONAL ARBITRATION LAW LIBRARY, (2015)
[5] 6 BLACKABY, NIGEL PARTASIDES, CONSTANTINE ,REDFERN, ALAN HUNTER, MARTIN , REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION (Oxford University Press 2015).
[6] Ikarian Reefer Case, Queen’s Bench Division (Commercial Court) Case No. [1993] 2 Lloyd’s Rep 68 25 February 1992.
[7]Kao P Frances, Heather L Justin, Horning A Ryan& Sinclair V Martin, Into the Hot Tub-
A Practical Guide to Alternative Expert Witness Procedures in
International Arbitration, 44 THE INTERNATIONAL LAWYER, 1035-44(2010).
[8] Voser, Nathalie Bell, Katherine, Expert Evidence in Construction Disputes ,The Guide to Construction Arbitration, 2 GLOBAL ARBITRATION REVIEW (November 2018).
[9] Dough Jones, Party Appointed Expert Witnesses in International Arbitration: A Protocol, at Last, 24 ARBITRATION INTERNATIONAL.
[10] Id.
[11] Justice J Wood, ‘Expert Witnesses:
the New Era’ (paper presented at the Eighth Greek Australian International Legal and Medical Conference, Corfu, 2001).
[12] CIArb Protocol , Article 4 para 1.
[13] Howard Rosen, ‘How Useful Are party-appointed Experts in International Arbitration?’, in Arbitration Advocacy in Changing Times, ICCA Congress Series No. 15 (2011), p. 147.
[14] CIArb Protocol , Article 4 para 3.
[15] Id.
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