www.judicium.it

ALESSANDRO FABBI

Knowledge of facts, inherent powers and minimum common standards in the use of expert

evidence in international arbitration

SUMMARY: 1. Foreword. Differences and convergences between common law and continental law

systems. - 2. National legislation and institutional arbitral rules. Party Experts vs. Tribunal Appointed

Experts: “re-shaping” the “historical” divide. - 3. Party Expert Evidence. - 3.1 […] Its manner of in-taking.

- 4. Tribunal-Appointed Expert Evidence. Ability for the parties to mutually exclude it. - 4.1 […]

Guarantees for the Experts’ impartiality. - 4.2 […] Expert Evidence and due process: the procedure for the

Tribunal Appointed Expert Evidence. - 4.3 […] Expert Evidence and the decision. - 5. Expert Evidence

regarding issues of law. Thoughts on the relevance of the iura novit curia principle in international

arbitration. 6. Concluding remarks: expert evidence, procedural law in international arbitration, and the

chance of “bridging” the divide between different procedural traditions.

Abstract: Procedural law in international arbitration is increasingly assuming its own

semblances as a particular model of convergence between different procedural legal traditions.

Indeed, the field at issue has long been recognized as one in which a progressive harmonization

could have taken the place of different procedural traditions or, at least, approaching such a

degree. Undoubtedly, this is a rare example of an adjudication process for disputes between

private parties of different nationalities. Even if the majority of national arbitration laws avoid a

large discretion for the parties and the tribunals in determining the procedure, the latter have in

fact naturally tended to follow the cultures of their domestic legal systems and for this reason in

the practice of international arbitration it has always been possible to observe a series of

features coming from both the common law and the civil law systems. The above notwithstanding,

international arbitral practice rather than representing a mere case of clash between different

procedural traditions currently shows the progressive development of a combined or compromise

procedural model, now constantly applied, subject of general acceptance and incorporated

within the relevant sources. The present article addresses – as part and example of the aforesaid

combined model – the topic of expert evidence in international arbitration, focusing on the

different aspects related thereto, on several points of convergence between different procedural

systems, as well as on the “consultative” nature of the proceedings – in a way that could be an

example for future evolution, not only for arbitral procedural law, but also for national

procedural legislations.

1. Foreword. Differences and convergences between common law and continental law systems

Arbitrators resorting to expert evidence is a long lasting praxis in international arbitration1,

due to the frequent complexity of the disputes which, especially in particular fields, often require

non-legal evaluations2.

Nothing prevents, considering the characteristic of arbitration, the panel being composed partly

or wholly of technical experts3. In fact, opting for the assistance of third parties seems to be the

prevailing tendency4.

1 Kreindler, Benefiting from oral testimony of expert witnesses: traditional and emerging techniques,

Levy, Veeder (eds.), Dossier ICC, Arbitration and Oral Evidence, Paris, 2005, 87 and ff. 2 See, for example, the shipping, construction, financial, economic or environmental fields. Expert

evidences on issues of law deserves a different approach (see infra, § 5). 3 See e.g. Marriott, Evidence in international arbitration, Marriott, Evidence in International

Arbitration, in Arbitration International, 1989, 5, 3, 280 and ff., 285; Cremades, Les pouvoirs des arbitres

de décider de l'admissibilité des preuves et d'en organiser la production, in ICC Bulletin, 1999, vol. 10, no.

1, 51 and ff.; Auletta, L’istruzione probatoria mediante consulente tecnico nell’arbitrato rituale, in Riv.

dir. proc., 2002, 1123 and ff.; Vigoriti, Arbitrato e consulenza tecnica, in Riv. arb., 1993, 185 and ff. and

in particular 187; Bernardini, Arbitrato e consulenza tecnica, in Riv. trim. dir. proc. civ., 1993, 613 and ff.;

www.judicium.it

As recently observed, expert evidence in international arbitration is among the fields in which

more significant convergences of different procedural traditions have emerged5. Indeed, the deep

differences which do exist on the matter between common law and civil law systems are well

known6.

Briefly, in the latter, an expert is usually appointed by the court to assist it and, in cases where

the parties appoint their experts, these will not be heard as witnesses, but they will act as advisers

to the parties to face with the court's expert. For instance, in the French system the expert is an

auxiliaire de justice, appointed by a judge from certain lists and from whom independence and

impartiality are required7. The expert is granted with extensive investigative powers (collection of

information, inspection to goods and sites etc.) to be exercised in compliance with the due

process principle; the parties have the right to submit their observations on the expert report and

the court could disagree therewith (peritus peritorum), although it usually endorses the

conclusions reached by the expert. So it is also in the Italian system8 on which it is not worthy to

expand on9.

To the contrary, in the Anglo-Saxon adversarial procedure the expert is a witness, brought by

the party before the judge to refer on technical issues and whose opinions are examined and cross

examined in hearings, as to evaluate its reliability and competence. Although the choice of party-

Verde, Lineamenti di diritto dell’arbitrato, Torino, 2006, 131-132. See also the multiple essays in Dossier

ICC, Arbitration and Expertise, Paris 1994, passim. 4 Pietrowski, Evidence in International Arbitration, in Arbitration International, 2006, 22, 3, 75 and ff.

and in particular 396. 5 Ricci, E. F., Ricci, E. F., La prova nell'arbitrato internazionale tra principio di flessibilità e regole di

correttezza: una pietra miliare verso l'armonizzazione di tradizioni diverse, in Riv. arb., III, 2008, 311 and

ff. and in particular 103 and De Boisseson, Introduction comparative aux systèmes d'administration des

preuves dans les pays de common law et les pays de tradition romaniste, in Dossier ICC, L'administration

de la preuve dans les procédures arbitrale internationales, Paris, 1989, 85 and ff., in particular 96. 6 For a comparative overview of expert evidence in civil and criminal trials as well as in arbitration, see,

ex multis, Cato (ed.), The Expert in Litigation and Arbitration, London, Hong Kong, 1999, passim;

Eijsvoogel (ed.), Evidence in International Arbitration Proceedings, London, 1994, in particular 67-300.

For a comparison between the French and the English systems, see Jolowicz, L’expert, le témoin et le juge

dans le procès civil en droits français et anglais, in Revue internationale de droit comparé, 1977, 285 and

ff., and amplius, on Roman tradition procedural systems, Matray, Les traits caractéristique de

l'administration de la preuve dans certaines procédures de type romaniste, in Dossier ICC,

L'administration de la preuve, supra, 114 and ff. and in particular 126 and ff. 7 On expert evidence in French civil trial, see Guinchard, Ferrand, Procédure civile, 28

th ed., Paris,

2005, in particular 1288 and ff.; Guinchard, L’expert, le juge et les plaideurs, in Cahiers de l’expertise

judiciaire, 1987, 9, 1 and ff. Adde, with reference to domestic and international arbitration, Lissarrague, Le

rôle de l'expert dans l'arbitrage, La revue Experts, 1991, 12, 9 and ff. and, more recently, Baert, Les

experts intervenant dans les procédures d'arbitrage interne ou international, ibidem, 2011, 9. Some

interesting reflections on the French system are also in Brown, Oral evidence and experts in arbitration, in

Levy, Veeder, Arbitration and oral evidence, supra, 2005, 77 and ff. 8 Within Italian literature, see, amongst others, Auletta, Il procedimento di istruzione probatoria

mediante consulente tecnico, Padova, 2002; Ansanelli, La consulenza tecnica nel processo civile. Problemi

e funzionalità, Milano, 2011; Franchi, La perizia civile, Padova, 1959; Barone, entry Consulente tecnico.

Dir. proc. civ., in Enc. Giur. Treccani, Roma 1988; and the recent essay of Bove, Il sapere tecnico nel

processo civile, available at www.judicium.it. 9 Save for underlining that resort to experts leads in such case of procedural lenghtness that the recent

reform brought by law no. 69/2009 aimed at addressing: on the latter, see Potetti, Novità e vecchie

questioni in tema di consulenza tecnica d’ufficio nel processo civile, in Giur. mer., 2010, 1, 24 and ff., and

Porreca, Le norme in tema di consulenza tecnica, in Didone (ed.), Il processo civile competitivo, Milano,

2010, 235 and ff.

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appointed experts still prevails10

, well-known changes in common law systems brought them

remarkably closer to the continental law systems11

.

The analysis of the evolution of the UK system, with most recent developments having directly

impacted on the CPR12

, is a precise example of this process of harmonization.

The lack of impartiality of party-appointed experts has always been emphasized13

to the extent

that they were called the paid liars14

. Notwithstanding perceived inadequacies, in line with the

adversarial principle, to substitute tout court party-appointed experts with court appointed

experts Lord Woolf in his 1996 report, beside underlining the excessive slowness and

expensiveness of trials involving experts, raised the issue of their impartiality15

, pointing to the

10

Brown, Oral evidence, supra and in particular 80. 11

The convergence on expert evidence is part of a broader trend to harmonization in dispute resolution

processes, which since years has been observed in a number of procedural systems: on such matters, see

recently Picardi, I grandi modelli socio-culturali per la giusta risoluzione delle controversie civili

internazionali e nazionali, in Riv. arb., 3, 2011, 365 and ff.; and previously Verde, G., Un processo

comune per l’Europa, in Europa e dir. priv., 1999, 3 and ff.; the essays collected in Due iceberg a

confronto: le derive di common law e civil law, Milano, 2009, among which in particular Varano, Civil

law e common law: tentativi di riflessione su comparazione e cultura giuridica, 40 and ff. and Consolo, Il

processo civile alla High Court di Londra, un intarsio fra Medioevo e globalizzazione economica, 61 and

ff. and the further essays included in Colesanti, Consolo, Gaja (eds.), Il diritto processuale civile

nell’avvicinamento giuridico internazionale. Omaggio ad Aldo Attardi, Padova, 2009. 12

On this system, among English authors see, above all, Zuckerman, Civil Procedure, London, 2003, in

particular chapter 20, 616 and ff.; Id., The Position of a Party Whose Expert Has Conceded the Opponents

Case. The Unresolved Tension Between Experts Role to Further the Party’s Cause and Their Obligation to

Assist the Court, in Civil Justice Quarterly, 2007, 26, 159 and ff.; Id., Disclosure of expert reports, ibidem,

2005, 24, 293 and ff. See also Marengo, L'expert evidence nei sistemi di common law, in Riv. dir. proc.,

2007, 3, 699 and ff.; Ansanelli, Comparazione e ricomparazione in tema di expert witness testimony, in

Riv. dir. proc., 2009, 3, 713 and ff. and previously, Cavallone, Il giudice e la prova nel processo civile,

Padova, 1991, 238 and ff. and Denti, Scientificità della prova e libera valutazione del giudice, in Riv. dir.

proc., 1972, 414 and ff. 13

Highlighting how they often “enter the arena” and “as advocates, put forward the maximum or

minimum figures as best suited to their side's interests” (see London Court of Appeal, Cemp Properties c.

Dentsply Research & Development Corporation, in Estate Gazette Law Reports, 1991, 2, 197 and ff.). 14

Townsend, Crossing the hot tub: examining adverse expert witnesses in international arbitration, in

Newman, L. W., Sheppard, B. H. Jr. (eds.), Take the Witness: Cross-examination in international

arbitration, New York, 2010, 161 and ff. 15

Lord Woolf, Access to Justice, July 1996, chapter. 13, § 3, available at

http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/index.htm: “(i)t was to meet

these concerns that, in chapter 23 of the interim report, I recommended that the calling of expert evidence

should be under the complete control of the court. Within that framework, I argued for a wider use of

'single' or 'neutral' experts who would be jointly selected and instructed by the parties, or, if the parties

could not agree on a single expert, appointed by the court. I also put forward a number of other

recommendations designed to achieve a more economical use of expert evidence in cases where opposing

experts were involved, by narrowing the issues between them as early as possible”. See also § 5, where it is

said “(t)here is widespread agreement with the criticisms I made in the interim report of the way in which

expert evidence is used at present, especially the point that experts sometimes take on the role of partisan

advocates instead of neutral fact finders or opinion givers. My detailed proposals on experts, however,

have provoked more opposition than any of my other recommendations. Most respondents favour retaining

the full-scale adversarial use of expert evidence, and resist proposals for wider use of single experts

(whether court-appointed or jointly appointed by the parties) and for disclosure of communications

between experts and their instructing lawyers”.

For a comment on such report see Zuckerman, Lord Woolf’s Access to Justice: Plus a change, in

Modern Law Review, 1996, 59, 773 and ff.; specifically on CPR amendments on expert evidence see

Frenkel, The New Civil Procedure Rules and the Expert Witness, in Cato, The Expert, supra, in particular 5

and ff., as well as, on the application of the 1999 reform on arbitration, Cato, supra, 753-830.

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desirability of a greater degree of independence and requiring the leave of court at the time of

admitting their opinions. He proposed, moreover, to introduce the possibility of appointing a

single joint expert, as a neutral individual designated by the parties or, failing their agreement, by

the court.

Such indications inspired the 1998 amendments to the CPR and other initiatives, such as the draft

of the Civil Justice Council Protocol on “Instructions of Experts to give Evidence in Civil

Claims”, published in 2005 and further amended in 2009. As a consequence, the UK procedural

system now provides either for party-appointed experts or for a single joint expert16

and the

impartiality requirements are the same in both cases17

. In particular, pursuant to rule 35.3 CPR all

experts shall assist the court and such duty “overrides any obligation to the person from whom

experts have received instructions or by whom they are paid”.

Similar developments took place in other procedural systems sharing the same origin, such as the

Australian one18

. Likewise, the US Federal Rules of Evidence allows both the recourse to party

appointed expert, pursuant to r. 702, and the appointment of a court expert (r. 706)19

.

These experiences, by providing for neutral experts, show how a converging process between

opposite systems is already in place and the pursuit of a higher degree of impartiality to party

appointed experts must be seen in the same frame, despite perception that the Anglo-Saxon

praxis is "largely a fiction" (and the mentioned requirements set forth by the CPR rhetorical) and

that the expert impartiality is always to be seen “relatively”20

.

Also, the above mentioned Roman tradition systems have gradually admitted party appointed

experts, originally unknown in their legislation. In the Italian system, for instance, out of court

formed party appointed expert reports enter into trials, sometimes as “atypical evidence” (i.e.

evidence not provided for in procedural legislation) or, more often, as technical defensive

allegations21

: irrespective of the name and title after which such evidence is admitted, it is worth

noting that party appointed expert opinions are, one way or another, given relevance during trials.

In the German system, besides the court expert (Sachverständige), article 414 of the ZPO

provides for the sachverständige Zeuge, a third party, different from the court expert and

summoned as a witness in order to report on the facts “zu deren Wahrnehmung eine besondere

16

See r. 25 CPR and practice direction no. 35 (“Experts and Assessors”) and, on the issue, Freeman,

Single and/or Neutral Experts, in Cato, The Expert, supra, 115 and ff. 17

See practice direction no. 35, § 2 and ff.: “(e)xpert evidence should be the independent product of the

expert uninfluenced by the pressures of litigation. Experts should assist the court by providing objective,

unbiased opinions on matters within their expertise, and should not assume the role of an advocate [...]”. 18

See, in this respect, Jones, Party Appointed Expert Witnesses in International Arbitration: A Protocol

at Last, in Arbitration International, vol. 24, 1, 137 and ff., 139 and ff. 19

Such possibility was introduced in the Federal Rules on Evidence in 1975, although case law already

admitted it in the practice (see e.g. US Court of Appeals Second Circuit, Scott c. Spanjer Bros. Inc.,

January 11, 1962, quoted by Timmerbeil, The Role of Expert Witnesses in German and U.S Civil

Litigation, in Annual Survey of International & Comparative Law, 2003, 9, 1, 163 and ff., in particular nt.

44). Moreover, US courts since years have been facing the issue of impartiality standards and the expert

reliability, upon which see Dondi, Paradigmi processuali ed “expert witness testimony” nel diritto

statunitense, in Riv. trim. dir. proc. civ., 1996, 261 and ff., in particular 267 and what that will be said

infra. 20

See Walde, in Oil-Gas-Energy-Mining-Infrastructure Dispute Management Discussion List, in the

blog of the web review www.transnational-disputemanagement.com/members/ogemid/welcome.asp. 21

Lombardo, Profili delle prove civili atipiche, in www.judicium.it, in particular § 2 C) and in Riv. trim.

dir. proc. civ., 2009, 4, 1447, who remembers that out of court expert evidence, even if neglected by the

code, is acknowledged by court precedents (partially deeming it devoid of any evidential value - see e.g.

Constitutional Court order no. 124/1995 or, in other cases, bestowing to it a presumptive probative value in

light of its “partial” nature and provenance).

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Sachkunde erforderlich war”22

. The same ZPO, at its article 404 par. 4, provides that the court

may not override the agreements whereby the parties appointed a certain person as an expert23

.

The original and deep differences between various systems are clearly declining: in all of

them attention is paid to preserve the experts’ impartiality (regardless of whether they are party

or court appointed), as well as to reduce - inasmuch as possible - costs and time of trials

involving experts24

.

2. National legislations and institutional arbitral rules. Party Experts vs. Tribunal Appointed

Experts: “re-shaping” the “historical” divide

Moving from such differences but, as it will be explained, enjoying the recent convergences

there between, the combined procedural model that developed in international arbitration

overcame them in the easiest way, i.e. by admitting both evidentiary means.

In order to avoid the limitation of the parties' (theoretical) autonomy and their supremacy in

controlling the proceedings, it would not have been fair to choose a priori one or the other

option: a hybrid system has thus been adopted, providing for the same solutions already theorized

in the past in systems belonging to both traditions25

. Nevertheless, as it will be noted, better

options may be observed a posteriori from the analysis of the arbitration practice.

Despite each national arbitral laws being affected by the aforementioned differences and

following mainly the tradition it belongs to, the most important institutional arbitral rules and the

main procedural models provide for the resort to both party experts and tribunal experts.

As to national legislations, article 816-ter par. 5 c.p.c. expressly provides that arbitrators may

be assisted by “one or more experts” (and recognition of such faculty was not in question even

when an express rule in this sense was absent26

), specifying that both individuals and entities may

be appointed as experts27

, whilst no reference is made to parties' experts – in accordance with the

Italian tradition that considers them non-reliable.

Many others' national legislation expressly provide for the appointment of tribunal experts28

,

whereas party experts are mentioned only in few cases29

. The possibility for the tribunal to

22

On the German system, from a comparative point of view, see Triebel, Plassmeier, The use of experts

in litigation and arbitration in Germany, in Cato, The Expert, supra, in particular155 and ff. On the

sachverständige Zeuge, see also, amongst others, Zimmermann, sub article 414, in Rauscher (ed.),

Münchener Kommentar zur Zivilprozessordnung: mit Gerichtsverfassungsgesetz und Nebengesetzen,

München, 2008, vol. I and more specifically, in arbitration, Lotz, Burkard, Der Sachverständige im

Schiedsverfahren, in SchiedsVZ, 2011, 4, 203 and ff. 23

Except for the power of the judge to limit the number of experts. For the proposal of introducing such

rule in the Italian system (or reaching and applying it by way of interpretation), see, most recently, Scarpa,

Auletta, La scelta del c.t.u. è veramente cosa del giudice?, in Giustizia Insieme, 2009, 2-3, 93 and ff. 24

Bove, Il sapere tecnico, supra, in particular § 3. 25

Talks about “hybrid procedures” and flexibility at this regard, Freyer, Assessing Expert Evidence, in

Newman, Hill (eds.), The Leading Arbitrators Guide to International Arbitration, New York, 2008, 429

and ff. See also Kopelmanas, Le rôle de l'expertise dans l'arbitrage commercial international, in Revue de

l'arbitrage, 1979, 205 and ff. and Günter, Arbitrage et expertise, in ASA Bulletin, 1993, 538 and ff.

A hybrid system in the use of expert evidence has also developed in trials before EU Courts, on which

see De La Serre, E. B., Sibony, Expert Evidence before the EC Courts, in Common Market Law Review,

2008, 45, 941 and ff. 26

On the issue see e.g. Auletta, L’istruzione probatoria mediante consulente tecnico, supra, 1123 and

ff. and, after the 2006 reform, Tota, Commento all’art. 816-ter c.p.c., in Briguglio, Capponi, Commentario

alle riforme del processo civile, vol. 3, Arbitrato, Torino, 2009, in particular 720 and ff. 27

La China, L'arbitrato. Il sistema e l'esperienza, Milano, 2011, 201, where the author suggests to

resort, in case the parties appoint entities as experts, to an application “cum grano salis” of the civil

procedure code. 28

See e.g. article 1696 par. 3 Belgian code judiciaire; article 36 of the Bulgarian law on international

arbitration; article 44 Arbitration Act of the PRC.

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appoint its own expert, moreover, is contemplated in all the countries that ratified the Model

Law, that so provides at its article 26.

The ICC Rules first mentioned party experts only in their 1998 version30

, having been

neglected in previous versions31

. The Uncitral Rules provide for both approaches32

, as do the

SCC Rules33

and the Rules of the Swiss Arbitration Chamber34

. Perhaps due to the influence of

Italian legislation on the subject, article 29 of the Rules of the Milan Chamber of Arbitration -

wholly dedicated to technical experts35

- seems to limit the parties’ ability to appoint their own

experts to cases where a “dialogue” with the tribunal appointed expert is necessary (although, in

our opinion, the provision does not seem to prevent the ability of the parties to nominate their

own expert regardless of whether the panel has designated one or not).

The LCIA Rules (articles 20 and 21) govern the designation of experts entrusted by the tribunal,

but the provision is seldom used, being absolutely prevalent the praxis that characterizes the UK

civil procedural system: among the 701cases LCIA administered until 2007, only in 6 of them the

panels appointed experts36

.

The aforementioned institutional rules thus provide for a great level of detail in regulating

expert evidence, especially if compared to the discipline dedicated to other evidentiary means and

procedures.

This is even more evident from the evolution of IBA Rules on the point: whilst in the first

version, dating back to 1983, only few provisions were contained as to expert evidence37

, by the

29

See article 1039 of Dutch Wetboek van Burgerlijke Rechtsvordering, according to which the parties

may rely on their experts. 30

See current article 25 par. 3 (“(t)he arbitral tribunal may decide to hear witnesses, experts appointed

by the parties or any other person, in the presence of the parties […]” and par. 4 (“(t)he arbitral tribunal,

after having consulted the parties, may appoint one or more experts, define their terms of reference and

receive their reports. At the request of a party, the parties shall be given the opportunity to question at a

hearing any such expert”. 31

As mentioned by Brown, Oral evidence, supra, 82. 32

Expert witnesses are mentioned in articles 27 and 28, while article 29 specifically regulates court

experts. It must be noted that the wording mentioned herein (and the same remark is stillvalid since no

modification interested the rule in 2010) narrows the parties’ possibility of having their own expert, being

them considered as witnesses: see, van Hof, Commentary on the Uncitral Arbitration Rules. The

Application by the Iran - US Claims Tribunal, The Hague, 1991, 192 and ff.), who remembers that during

the Rules’ preparatory works some perplexities were raised in such respect, but notwithstanding that, the

proposal to insert in the provision on court expert – in order to cast away doubts – the following wording

"without prejudice to the expert proof provided by the parties" was refused. The gap may nevertheless be

filled in by appropriate procedural orders and actually this is what has happened insofar in Uncitral arbitral

practice, which has shown a broad resort to parties’ experts: see references in van Hof, supra, in particular

197). 33

Article 28 provides for the possibility of the parties to submit expert opinions and article 25 provides

for the possibility for the tribunal to appoint an expert “after consultation with the parties”. 34

Articles 25 and 27. 35

See article 29 CAM Rules:“1. ll Tribunale Arbitrale può nominare uno o più consulenti tecnici

d’ufficio o delegarne la nomina alla Camera Arbitrale. 2. Il consulente tecnico d’ufficio ha i doveri imposti

dal Regolamento agli arbitri e ad esso si applica la disciplina della ricusazione prevista per gli arbitri. 3.

Il consulente tecnico d’ufficio deve consentire alle parti di assistere direttamente o tramite i loro difensori

alle operazioni di consulenza tecnica. 4. Se sono nominati consulenti tecnici d’ufficio, le parti possono

designare dei consulenti tecnici di parte. Le operazioni di consulenza tecnica cui hanno assistito i

consulenti tecnici designati dalle parti si considerano eseguite in presenza di queste ultime”. 36

Data mentioned by Turner, Mohtashami, A Guide to the LCIA Arbitration Rules, Oxford, 2009, 136

who remember that the provision on court expert was introduced in LCIA Rules as an acknowledgment of

this internationally widespread practice and although court experts were barely known within the Anglo-

Saxon system. 37

See e.g. article 7, lett. g) 1983 IBA Rules, on party appointed expert.

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1999 and 2010 versions amendments38

have been introduced creating an in-depth regulation of

expert evidence, strengthening the cooperation of the parties in the phase of its in-taking and

adding some provisions to safeguard the due process principle39

. Said recent amendments, also,

aimed at assimilating as much as possible both types of expert evidence, to the extent that

amongst the “(d)efinitions”, a single notion of expert report is now included, intended as “written

statement by a Tribunal-Appointed Expert or a Party-Appointed Expert”. Likewise, both with

reference to tribunal experts40

and to party experts41

: i. there is now reference to the possibility

that the expert be an individual or an entity; ii. it is provided that they be both focused on

“specific issues”; iii. there is a firm tendency to preserve the impartiality (and reliability) of the

experts.

3. Party Expert Evidence

Party experts in international arbitration might be placed in the commonly approved broad

category of witnesses42

, as confirmed by leading authors43

and the arbitral cases44

: from this

assumption stem two consequences.

One the one hand, it is necessary to assess every time when an individual may be considered as

an expert or a fact witness45

. Arbitral practice defines as an expert who shall make an

"appreciation sur des données d'expérience qui, en principe, sont accessibles à tous"46

and

requires that the parties provide indications in their factual allegations and evidentiary requests

(as well as in the witness statements47

) declaring the content of the assignment48

, in order to allow

38

See Harris, Expert Evidence: The 2010 Revisions to the IBA Rules on the Taking of Evidence in

International Arbitration, in International Arbitration Law Review, 2010, 5, 212 and ff.; Sachs,

Schmidt‐Ahrendts, Expert Evidence Under the 2010 IBA Rules, ivi, 2010, 5, 216 and ff.. 39

Basically it deals with an improvement of the manner of in-taking expert evidence, with the

implementation of a praxis already applied, which follows an evolution similar to that of the Italian

procedure system (by mentioned law no. 69/2009), aimed at guaranteeing the parties' rights and at finding a

balance between them. 40

See, among the “(d)efinitions”: “a person or organisation appointed by the Arbitral Tribunal in order

to report to it on specific issued determined by the Arbitral Tribunal”. 41

Defined as: “a person or organisation appointed by a Party in order to report on specific issues

determined by the Party”. 42

A prominent Italian author, Francesco Carnelutti of the last century aforetime noted at this regard (in

La prova, supra, 130) that although expert evidence could be considered as falling within the broad

category of “testimony”, the expert played a different role in respect with the witnesses in convincing the

judge, since the expert reports are based upon his/her perception of facts and deductions, and they received

an assignment to such perception and deduction ("incarico alla percezione o alla deduzione"). Such

difference, at a first sight, becomes smoother in international arbitration where experts are mainly

considered witnesses, although – as noted supra in the body text – is still essential to underline the existing

differences between experts and fact witnesses. 43

See e.g. von Mehren, Salomon, Submitting Evidence in an International Arbitration: The Common

Lawyer's Guide, in Journal of International Arbitration, 20, 3, 285 and ff., in particular 286. 44

See order of May 12 2004, ICC case no. 12990, in Hascher (ed.), Decisions on ICC Arbitration

Procedure: A Selection of Procedural Orders issued by Arbitral Tribunals acting under the ICC Rules of

Arbitration (2003-2004), Paris, 2011 , where for the admittance and in-taking of party expert opinions

reference was made, “by analogy”, to the rules provided for fact witnesses; see also order of May 19 2004,

ICC case no. 13046, ibidem, where it is stated that “(t)he provisions of Section 5 of this Order [“Evidence

of Fact Witnesses”] are applicable, mutatis mutandis, to expert witnesses”. 45

Kreindler, Benefiting from oral testimony, supra, 95 and ff. 46

See order of June 9 1987, ICC case no. 4815/1996, in Hascher, Collection of ICC Procedural

Decisions in ICC Arbitration 1993- 1996, 1997, Paris and elsewhere, 130 and ff. 47

See order in ICC case no. 5082/1995 and order in ICC case no. 7170/1993, both in Hascher,

Collection, supra, respectively 113 and ff., 23 and ff. (on the issue we further dissert infra, chapter 6, §

32.1).

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the identification of technical experts and fact witnesses, and to avoid, as sometimes happened in

international proceedings, the same individual being heard first as a witness and then as an

expert49

.

On the other hand, the aforesaid assumption implies that expert evidence may not be admitted

without leave of the arbitrators: the panel will – as for witnesses and for any other evidence–

decide upon the relevance of the request, reducing, if it is opportune, the number of experts to be

appointed, deciding the manner of execution of the assignment etc.50

. A proper right of the party

appears to exist only where appointment of an expert is necessary to cross-examine the report of

a tribunal expert, as suggested by article 21 par. 2 of LCIA Rules51

.

Said classification, moreover, triggers the application of the same rules provided for witnesses to

admission of party experts.

Having said that, the statement that "in arbitration the distinction between witness and expert

does not exist "52

does not seem (anymore) wholly correct, because instead a clear and evident

trend to increase party experts’ impartiality is recognizable , making them resemble an expert

entrusted by the tribunal rather than a simple witnesses. The same criticisms on party experts

already discussed when describing the single national systems (and which led to the

aforementioned amendments in legislation) are present also in international arbitration and in this

context they have been overcome, gradually, so that expert evidence has been re-shaped in a sui

generis manner.

Also in international arbitration the party expert status (often blamed for favoring the

appointing party53

) has been considered “unclear”54

and has been much criticized by continental

law authors55

, but less so from common law jurists56

.

48

See e.g. the decisions of ICC, case no. 6657 and 7867, in Hascher, Collection, supra, 102, recalling

national legal concepts such as the German sachverständige Zeuge or the French sachant. 49

As it is reported to have happened, for example, in previous cases before the International Court of

Justice: Sandifer, Evidence before International Tribunals, Charlottesville, 1975, in particular 289 and ff. 50

See e.g. Sutton, Gill, Gearing, Russell on Arbitration, London, 2007, 245. See also ICC Rules and the

Chartered Institute of Arbitrators Protocol on which we will turn shortly in the body text. See also 2010

amendments to the IBA Rules and the emphasis on the many time recalled "collaborative" method (see e.g.

Kühner, The Revised IBA Rules on the Taking of Evidence in International Arbitration, in Journal of

International Arbitration, 2010, 27, 6, 667 and ff., in particular 673); differently, the same Rules in the

1999 version at article 5 appeared to allow the parties to submit also expert evidence without the tribunal

authorization, as highlighted by Freyer, Assessing Expert Evidence, supra, in particular § II.a, who

underlines that article 32, paragraph 1 ICSID Rules apparently contains a similar indication. 51

Turner, Mohtashami, A Guide to the LCIA, supra, 136, who mention article 20 LCIA Rules 52

Mourre, Differenze e convergenze tra common law e civil law nell'amministrazione della prova:

spunti di riflessione sulle IBA Rules on Taking of Evidence, in Riv. arb., 2007, 2, 179 and ff., in

particular191. 53

See e.g. Kurkela, Due Process in International Commercial Arbitration, Oxford, 2004, in particular

147: "experience in legal practice has proved that the statements, conclusions and opinions of experts vary

and tend to favor the position of the party who nominated them". 54

And the same consideration was raised in respect with proceedings before EU courts (see De la Serre,

Sibony, Expert Evidence, supra, in particular 965 and before them Lasok, The European Court of Justice.

Practice and Procedure, London, 1994, in particular 398). As Biavati remembered in Diritto processuale

dell’Unione Europea, Milano, 2005, in particular 216, although it is used, no provision exists on party

expert in European procedural law. Nevertheless, the contraposition between court expert and party expert

in such proceedings is an issue of topical interest, as it is showed by the public consultation recently ended

on the issue, available at http://www.rpcsjue.org/IMG/pdf/Newsletter16_En.pdfes (Réseau des Présidents

des Cours Suprêmes judiciaires de l’Union européenne, newsletter no. 16, March 2011). 55

See von Mehren and Salomon, Submitting Evidence, supra, 290. 56

Feutrill, Rubins, The preparation of expert evidence in international commercial arbitration:

practical aspects, in International Business Law Journal, 307 and ff., § 1.

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To clear the perplexities raised various solutions have been proposed aimed at diminishing the

difference between the independence requirements for party experts and those that are typically

requested for tribunal experts57

.

Within this frame, it is worth recalling the initiative of the London Chartered Institute of

Arbitrators, which in September 2007 issued a Protocol “for the Use of Party-Appointed Expert

Witnesses in International Arbitration”58

, that - despite being scarcely applied59

- seems to be

very useful in pursuing the above goal60

.

It provides for specific impartiality requirements for party experts, their duty to “assist the court”,

and establishes that the expert shall include in his report an “expert declaration” (see article 8) in

which all the previous relationships with the appointing party must be disclosed.

The 2010 amendments to the IBA Rules should be seen in the same perspective, especially

those points which require that the expert report (article 5 par. 261

) include a declaration on

possible previous relationships with the members of the arbitral tribunal, the parties and their

legal advisors (even if we note that it would have been proper that such statements had included

also a reference to the previous expert’s knowledge of the facts at stake62

) and where the

“affirmation of the truth” was replaced with the reference to the "genuine belief” of the experts in

their opinions63

.

Other solutions adopted by the CIArb Protocol and now implemented in the IBA Rules64

aim at

making the expert evidence intake proceeding as clear and transparent as possible, outlining its

different phases and requiring, for instance, that the instructions of the appointing party be

attached to the report (beside having them also summarized inside)65

.

Also, it is worth mentioning the rules which set forth that the party-appointed experts meet,

confer and draw a common report on any issue on which they reached an agreement and

57

Pietrowski, Evidence, supra, 375 and 409. 58

Hereinafter “CIArb Protocol”, on which see, generally, Jones, Party Appointed Expert Witnesses in

International Arbitration: A Protocol at Last, in Arbitration International, vol. 24, 1, 137 and ff.; Kantor,

Is There a Code of Conduct for Party-appointed Experts in International Arbitration?, in Hobér,

Magnusson, Öhrstöm (eds.), Between East and West: Essays in honour of Ulf Franke, 2010, New York,

239 and ff. (see also the ampler version, in Arbitration International, 2010, 26, 3, 323 and ff.: Id., A Code

of Conduct for Party-Appointed Experts in International Arbitration: Can One be Found?). See e.g.

Gaffney, O’Leary, Tilting at Windmills? The Quest for Independence of Party‐Appointed Expert Witnesses

in International Arbitration, in Asian Dispute Review, 2011, 2, 82 and ff. 59

Kantor criticizes that in Is There a Code, supra, in particular 241. It must be noted that the CIArb

Protocol at issue, although expressly mentioned in few cases, inspired remarkable progresses, and lately the

recent amendments to the IBA Rules. 60

See CIArb Protocol which provides that the expert report shall be "impartial, objective, unbiased and

uninfluenced by the pressures of the dispute resolution process or by any Party", and in addition that "(t)he

expert's testimony shall be given with the purpose of assisting the Arbitral Tribunal to narrow the issues

between the experts and to understand and efficiently use the expert evidence" (see article 4). 61

See article 5 par. 2 IBA Rules. Von Segesser, The IBA Rules on the Taking of Evidence in

International Arbitration, in ASA Bulletin, 28, 4, 2010, 735 and ff., in particular 739, remembers that this

was one of the main issues that the Working Group IBA that drafted the amendments to the Rules was

supposed to analyze. 62

See also Cato, The Expert, cit., § 723.4. 63

Compare with article 5, c. 2 lett. e) IBA Rules. 64

The IBA Rules provides for the inclusion of a statement in expert reports declaring, in case of

translation, the original language that has been used (although it would be eveneasier as provided by article

3 par. 12 lett. d) on documents, to submit both versions indicating which is the "starting" language). For

transparency reason (von Segesser, The IBA Rules, supra, in particular 748) in case the report is drafted by

more experts, it is necessary to specify to whom of them the different partiesare attributable. 65

Save for the case in which the arbitral tribunal decides that for confidentiality reasons such

information shall remain wholly or partially undisclosed.

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highlighting the remaining areas of disagreement66

(the so-called consolidated reports), rules that

are receptive of good practices already in place in arbitral case law67

.

Further proposals can be advanced, from the possibility to set up meetings among experts

prior to the submission of the dispute before the arbitrators (likewise the US pre-trial depositions,

on which we will come back later)68

, to the opportunity of introducing prohibitions for the

experts to receive and follow instructions to disagree with the other party’s allegation or opinions

on the report69

.

Finally, in the absence of any sanction to prevent illicit conduct70

and to avoid that the

aforementioned declaration of truth remains ineffective, along with the analyzed provisions it is

advisable that a reference to the ethical rules of the expert's professional association71

be made,

with the consequent possibility to inform the competent disciplinary body of any violations

(bearing in mind that, often the appointed experts do not join any professional association72

).

3.1 […] And its manner of in-taking

The procedure for party experts’ in-taking does not differ much from the procedure usually

followed for fact witnesses.

First of all, as it happens with the production of witness statements, it is common practice that

before the experts’ appearance their reports are submitted to the tribunal and it is also possible

that before the hearing the latter authorizes the parties to file briefs commenting on such

reports73

.

As with witnesses, experts may be prepared before oral examination74

, although such practice

is not universally recommended, in light of the aforesaid ethical and professional duties that

experts may have. In any case, when this happens, it is proper that reports expressly mention the

occurred preparation75

.

Sometimes (more often than for fact witnesses), experts are requested to be sworn, giving an

oath or providing a written declaration to this effect in their reports (but such practice, as

previously pointed out, has only a persuasive value)76

.

66

A faculty provided for by article 5 par. 4; see also the faculty for the arbitral tribunal contemplated by

article 5 par. 3 IBA Rules to order a joint hearing of the experts following the submission of their reports

(infra, chapter 6, § 32.5). 67

See order of June 21 2004, ICC case no. 12296, in Hascher, Decisions on ICC, supra; in ICSID

arbitration, see procedural order of October 2011, case no. ARB/07/12, Toto Costruzioni Generali S.p.A. v.

Republic of Lebanon (not published). 68

Also to favor settlements: see e.g. Jones, Party Appointed Experts, supra, in particular 143, who

recalls the Practice Directions applied in New Wales civil proceedings. 69

See Jones, Party Appointed Experts, supra, 145. 70

On the existence of the risk that the parties are encouraged to appoint experts only apparently

impartial see Kantor, Is There a Code, supra, 251. 71

See Kantor, supra, 241 in particular, who mentions certain ethical codes, such as Code of Practise for

Experts, which contains rules on dispute resolution proceeding edited jointly by the Academy of Experts,

l'Expert Witness Institute and by Euro Expert. The author mentions also the ethical rules set forth by

professional associations such as the American Society of Civil Engineers orthe American Institute of

Certified Public Accountants. 72

See e.g. Jones, Party Appointed Experts, supra, 151 and Kantor, supra, 249 and ff., quoting the

example of financial intermediaries, economics and academics. 73

As already provided, for instance, at point no. 73 of Uncitral Notes. 74

See e.g. Feutrill, Rubins, The preparation of expert evidence, supra, 319 and ff. 75

Kreindler, Benefiting from oral testimony, supra, 92. 76

As happened in ICC case no. 12761, for which see the order of March 12, 2004, in Hascher,

Decisions on ICC, supra, in particular § 3. In addition, see e.g. Pietrowski, Evidence, supra, 396, where the

author remembers the formula used pursuant to article 64 of the procedural Rules of the International Court

of Justice.

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The testimony of a party expert is then carried out mainly with the same modalities applied to

fact witnesses77

.

The right to cross examine the expert is expressly acknowledged only by article 5 par. 3 IBA

Rules, but shall be deemed as existing also in ICC arbitration, despite what article 25 paragraphs

3 and 4 ICC Rules literally provide(which apparently suggest that such right should be granted

only with respect with tribunal experts78

).

It is possible (and particularly advisable) to proceed to a meeting among the various experts

(article 5 par. 4 IBA Rules).

The adoption of the hot-tubbing examination method has also been proposed79

, consisting in the

joint examination of all the experts, in a way that each of them has a certain time to testify before

the others, who in turn will have the possibility to reply and question. Only after that the

traditional examination and cross examination of the legal advisors of the parties will take place.

Such method is actually used in practice80

and it should be seen among the provisions aimed at,

as mentioned, increasing the reliability of party experts.

As also mentioned, at the end of the oral hearing the increasingly common praxis, and

nowadays included in the IBA Rules, is for the experts to draft consolidated reports.

4. Tribunal Appointed Expert Evidence. Ability for the parties to mutually exclude it

Addressing tribunal experts in international arbitration requires first of all to briefly come

back to the issue of who, among the parties and the arbitrators, has the power to manage the

procedure and determine the applicable rules, in order to understand whether the former may

preclude a priori the resort to consultancy and whether, in such case, the latter may order it

anyway.

Mentioned article 26 of the Model Law actually appears to grant the litigants with the power

to reach an agreement on the issue, even if one should remember that such ability was discussed

among the drafters of the Model Law81

: in particular, the Soviet Union delegate disagreed with

the provision of an unconditioned ability of the parties in this respect, proposing that such an

agreement should have been admissible, if at all, only, before the commencing of the arbitral

tribunal. In spite of this request, at the end it was decided not to limit such ability, reaffirming the

supremacy of the parties' autonomy on the procedure and considering also that, in such case, the

arbitral tribunal could always withdraw from the assignment.

77

With reference to the cross examination of court experts see ex multis Landsman, Cross-examining a

technical or scientific expert, in Newman, Sheppard, Take the Witness, supra, 167 and ff.; Lamm, Vasquez

Jr., Drossos, Ten guidelines for the cross-examination of financial and technical experts, ibidem, 193 and

ff. and with specific reference to the cross examination of experts on law issues Bermann, Cross-examining

the legal expert, ibidem, 181 and ff. 78

See also Brown, Oral evidence, supra., 82. 79

See Jones, Party Appointed Experts, supra, in particular 147-148 (recalling that such method is in use

in Australia starting from the ‘70s in competition proceedings and that it was recently implemented also for

the proceedings before the local supreme courts) and Towsend, Crossing the hot tub: examining adverse

expert witnesses in international arbitration, in Newman, Sheppard, Take the Witness, supra, 161 and ff. A

legal basis for such method could be found in article 6 IBA Rules which provides for the possibility that

party appointed experts refer their questions directly to the court experts and in the more general article 8,

which provides that during the oral phase of the proceeding may be scheduled joint hearing and a

confrontation. 80

See Townsend, Crossing the hot tub, supra, 165 and the comment of the author to the order dated

November 21, 1989 in ICC case no. 5082/1995, in Hascher, Collection, supra, 118. 81

See amplius Binder, International Commercial Arbitation and Conciliation in Uncitral Model Law

Jurisdictions, London, 2010, 322.

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The decision of the mentioned conditores, although not strictly followed in some national

systems that implemented the Model Law82

, is in fact confirmed in many others national systems,

such as the Swedish one (article 2583

) or the British one (article 3784

), and it is implicitly upheld

by either article 816-bis 85

or article 816-ter of the Italian c.p.c., that is silent in this respect86

, or

by article 1049 of the ZPO87

.

Among the institutional rules and the procedural soft-law, article 21, par. 1 lett. a) of the LCIA

Rules confirms the above by admitting the tribunal expert appointment "unless otherwise agreed

by the parties", whereas other sources simply provide for a mere obligation to first confer and

consult with the parties in such respect88

.

In front of partially unclear indications, authors and courts in the past have considered: i.

sometimes that the appointment could always be decided by the arbitrators89

; ii. in other cases

that the consent of at least one party was necessary90

; iii. in other situations, that the parties could

always preclude the appointment of a tribunal expert91

.

82

Provide for such faculty the Canadian law (article 26 Canadian Arbitration Act), the Spanish one

(article 32 ley de arbitraje) and the Japanese (article 34 Arbitration Act), while Bulgaria, Egypt, Jordan and

in the Oman Sultanate opted for (literally) a broader unofficial power of the tribunals, whose regulations

simply read that "(t)he arbitral tribunal may appoint one or several experts to present a written or oral

report on determined questions" (see references, again, in Binder, International Commercial Arbitration,

supra, 323). 83

See article 25 par. 1: “(t)he parties shall supply the evidence. However, the arbitrators may appoint

experts, unless both parties are opposed thereto” and confirming such possibility, Heuman, Arbitration

Law of Sweden: Practice and Procedure, New York, 2003, in particular 257. 84

See article 37 (“Power to appoint experts, legal advisers or assessors”): “ (1)Unless otherwise

agreed by the parties (a) the tribunal may: (i) appoint experts or legal advisers to report to it and the

parties, or (ii)appoint assessors to assist it on technical matters, and may allow any such expert, legal

adviser or assessor to attend the proceedings; and (b) the parties shall be given a reasonable opportunity

to comment on any information, opinion or advice offered by any such person. (2)The fees and expenses of

an expert, legal adviser or assessor appointed by the tribunal for which the arbitrators are liable are

expenses of the arbitrators for the purposes of this Part”). 85

Allowing the parties to agree on rules to be followed during the arbitration procedure (and, in

absence of such agreement, providing for the so-called arbitrators’ default procedural discretion): in this

sense, regarding expert evidence, Auletta, L’istruzione probatoria mediante consulente tecnico, supra,

1123 and ff. and in particular 1131. 86

See e.g. Verde, G., Lineamenti, lc. ult. cit. 87

Triebel, Plassmeier, The Use of Experts, supra, spec. 163. 88

See article 27 par. 1 Swiss Arbitral Chamber Rules; IBA Rules, based on the already recalled “meet

and consult method”; article 29 Uncitral Rules; 1996 Uncitral Notes on Organizing International

Arbitration Proceedings and the Conduct of Evidence; article 26 par. 4 ICC Rules (previously article 22). 89

See Carlevaris, Commento all'art. 20 Reg. ICC, in Briguglio, Salvaneschi (eds.), Regolamento di

arbitrato della Camera di Commercio Internazionale. Commentario, Milano, 2005, 356 and ff. and in

particular 385, also for French and Swiss case law; see also Schäfer, Verbist, Imhoos, ICC Arbitration in

Practice, 2005, The Hague, 107. 90

On ICC Rules1998 version, see Jarvin, Eléments de la procedure d’arbitrage, in ICC Bulletin,

Special Supplement 1997: The New 1998 ICC Rules of Arbitration: Proceedings of the ICC Conference

Presenting the Rules, Paris, 1997, in particular 38. In the same sense, see also Derains and Schwartz, A

Guide to the New ICC Rules of Arbitration, The Hague and elsewhere, 1998, in particular 280.

In case law was recently stated that whether no clear provision exist, the appointment of an expert

would fall within the arbitrator inquisitorial powers: see High Court of Justice, Queens’ Bench Division

(Technology and Construction Court), July 13, 2010, Price c. Carter (t/a Ian Carter Building Contractors),

where the court rejected the application pursuant to article 68 AA to set aside an award issued according

theConstruction Industry Model Arbitration Rules (“CIMA”) of theEnglish Society of Construction

Arbitrators, for the arbitrator not having communicated in advance to the parties his intention to appoint an

expert, underlining the absence of specific provision in this respect in the applicable regulation. 91

See also Carlevaris, lc. ult. cit.

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Despite such different interpretation, the mainstream practice is that it is not advisable for

arbitrators to act against the parties’ will92

and is inclined to respect the latter (following the trend

indicated above under point iii.), not only on the opportunity of the designation, but also, as it

will be later explained, on the identity of the individual and the modalities according to which the

consultancy will be carried out.

4.1 […] Guarantees for the Experts’ impartiality.

As noted, although the experts shall assist the arbitral tribunal, they may not be considered as

proper assistants of the same. Given the absence of any obligation to take oaths (i.e. to tell the

truth93

) or to serve their office subject to sanctions, the experts may qualify rather as consultants,

liable after all to the parties94

.

The mechanisms to maintain expert impartiality during trials are missing and international

arbitration is willing to implement such rules in order to fill the gap. In this respect some of the

aforementioned solutions adopted for party experts may be effective, mutatis mutandis, also for

tribunal arbitral experts.

With specific regard to tribunal experts, article 6 par. 2 of the IBA Rules provides that experts

shall submit a statement of independence and other information necessary to evaluate their

impartiality (and mainly corresponding to that already mentioned for party experts95

). Other

arbitral regulations contain similar provisions and also in case the applicable regulation does not

state anything it is opportune that the arbitral tribunal deals the issue, consulting with the parties,

by means of "agreed” procedural orders96

.

Among the means to guarantee the expert impartiality has to be recalled the widespread

arbitral praxis to induce the parties to appoint an expert97

, either agreeing on a person contained

in a potential experts list proposed by the tribunal98

, or by the submission by each party of a list

of potential experts99

. In addition to that, it could also be helpful to draw a "permanent" list of

experts, set up and maintained by arbitral institutions100

possibly having recourse to their

92

See e.g. order of September 20, 2004, ICC case no. 13054, in Hascher, Decisions on ICC, supra;

contra see e.g. Iran-United States Claims Tribunal, June 21, 1985, Behring International Inc. c. Iranian Air

Force, ITM/ITL 52-382-3, in Yearbook Commercial Arbitration, XI, 1986, 349 and ff., in which the

tribunal ordered an expert evidence notwithstanding the opposition of the parties (and see also, in the same

case, the dissenting opinion of arbitrator Mosk, who affirmed that the powers of an arbitral tribunal should

not be considered as without limits as the majority said).

Among scholars, with reference to mentioned article 21 of the LCIA Rules, see Turner, Mohtashami, A

Guide to the LCIA, supra, 135 ("it is unlikely that a tribunal will impose an expert on the parties against

their wishes") see also on ICC arbitrations, Craig, Park, Paulsson, International Chamber of Commerce

Arbitration, New York, 2000, 442. 93

At this regard, see also what will be said infra, sub § 33. 94

See Verde, Lineamenti, supra, 131; and Tota, Commento all’art. 816-ter c.p.c., supra, in particular

721 and the further references mentioned in note 43, and La China, L’arbitrato, supra, in particular 201. 95

About which the praxis already made reference in the past: see e.g. the order issued in ICC case no.

7170/1993, in Hascher, Collection, supra, in particular 30 and ff. 96

See article 21, par. 1 lett a) of the LCIA Rules (whereby experts "shall be and remain impartial and

independent of the parties throughout the arbitration proceedings") andarticle 22, par. 1 of the AAARules;

whilstnothing is provided for ICC arbitration, the praxis of which appears to be aligned as explained. 97

Already foreseen, in the Uncitral Notes (see § 70). 98

As mentioned by Carlevaris, Commento, supra, 386. 99

See order in ICC case no. 5715/1996, in Hascher, Collection, supra, 149; as well as the Iran – United

States Claims Tribunal, Chas. T. Main International Inc. c. KWPA case, no. ITL 35-120-2, in Iran-US

Claims Tribunal Reports, 5, in particular 186. 100

The appointment ofan expert may be remitted to the arbitral institution according to article 29 par. 1

of the CAM Rules.

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executive offices101

or even in cooperation with association representing experts, as indicated

above.

Finally, an alternative mean of promoting the impartiality of expert witnesses is to increase

the ability to challenge those experts.

Nothing is said in this respect in the ICC, nor in the LCIA and AAA Rules, whilst it is of interest

the provision contained in article 29 of the Milan Chamber Rules, which at par. 2 recalls the rules

providing for challenges of arbitrators. Also in the Model Law, in the absence of any express

regulation, the provisions on challenges of arbitrators (articles 12 and 13) might apply

analogically and this is the solution adopted, implementing the said Law, by the German system,

whose article 1049 par. 3 ZPO recalls the previous articles 1036 and 1037 par. 1 and par. 2102

.

The same solution was proposed for arbitration regulated by the Italian civil procedure code103

and it may be argued so also for IBA Rules, where it is provided that any claim, objection or

dispute among the parties regarding the experts shall be decided by the tribunal before their

appointment and according to article 6 par. 2 last part104

(and we suggest that this should be

admitted also beyond such deadline, where the reasons to challenge raise during the trial105

).

4.2 […] Expert Evidence and due process: the procedure for the Tribunal Appointed Expert

Evidence

As in each national system, the arbitral tribunal experts are granted with broad powers to

investigate, inspect, request documents and any other evidence106

. The IBA Rules, for instance,

expressly provide that the experts, at this regard, are granted with the same powers of the

tribunal.

On this issue, mention shall be made first of all on the number of measures implemented to

prevent possible abuses and to guarantee due process107

.

In addition, if a permanent list of expert should be prepared, it would be opportune to set forth inclusion

criteria and control mechanisms (and this regard the remarks of Taruffo, in Conoscenza scientifica e

decisione giudiziaria, in Decisione giudiziaria e verità scientifica. Quaderni Riv. trim. dir. proc. civ., 8,

Milano, 2008, in particular 8, on the minimal "de minimis" criteria provided by articles 61 of the Italian

c.p.c. and 15 of its implementing rules would help). 101

Such as, for ICC arbitration, the International Centre for Expertise. See Schäfer, Verbist, Imhoos,

ICC Arbitration, supra, 105; and also Derains and Schwartz, A Guide, supra, 280. 102

See article 1049 par. 3: "(a)uf den vom Schiedsgericht bestellten Sachverständigen sind die §§ 1036,

1037 Abs. 1 und 2 entsprechend anzuwenden". 103

La China, L’arbitrato, supra, 202, who believes that in the same cases an expert may be challenged,

he/her shall first have a duty to abstain. 104

Said rule (which repeats what mainly provided for by article 29 par. 2 last part of the Uncitral Rules)

provides that after the expert has declared his/her independence and before the acceptance of the

assignment, the tribunal should communicate his/her name to the parties, setting a deadlines for their

possible objections/observations on which the tribunal should decide without delay (“promptly”). 105

See also Kühner, The Revised IBA, supra, in particular 674. See Matray, Les traits caractéristique,

supra, 131, who believes that the possibility to challenge an expert appointed with the parties agreement

should be limited (referring only to gross violations). 106

See article 6, par. 3 of the IBA Rules and article 29 par. 3 of the Uncitral Rules, which provides as

follows: “(t)he parties shall give the expert any relevant information or produce for his or her inspection

any relevant documents or goods that he or she may require of them. Any dispute between a party and such

expert as to the relevance of the required information or production shall be referred to the arbitral

tribunal for decision”. 107

See e.g. Berlinguer, Contraddittorio e consulenza tecnica, in Riv. arb., 1994, 762 and ff. Having

realized that, also in international arbitration, expert evidence may have various content ranging from the

simple "observation of facts" or "the description of phenomenon" or imply the execution of "complex

activities and an active role in the understanding of the cause of possible damage", such fulfillments

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Indeed "(l)ike arbitrators, the expert must observe the principles of due process and equal

treatment of the parties"108

and such statement is constantly repeated by both national courts109

and in the arbitral practice110

.

A tribunal decision to appoint an expert should be discussed as soon as possible among the

parties111

and it often happens that these are authorized by the arbitrators to submit brief notes on

the issue as well as, as noted before, on the selection of the expert to appoint112

.

Also the above recalled provisions which impose transparency of the proceeding aimed at

ensuring compliance with the due process principle: although not expressly provided, it seems

advisable to allow the parties to participate to the drawing up of the expert indications113

, or the

definition of limitation of his/her assignment, that the tribunal should include in agreements with

the litigants114

.

The same applies to the procedure for the execution of the consultancy, only partially defined by

the single procedural sources115

. These do not go further than providing that the expert report

shall be written and to specify a duty of cooperation between the parties and the expert116

,

guaranteeing to the latter access to any document, good or any other useful information necessary

to fulfill the assignment117

and setting forth that arbitrators shall decide any issue arising on the

matter118

.

In addition, it is often provided that the parties may submit written notes to the expert report

and that the expert might supplement it by replying to such comments119

. Specifically, the parties

and their experts have the right to have copy of or a notice about any document or information

obtained by the expert, as well as to inspect any place or good examined by the latter120

.

appear to be necessary (on the distinction between the perceiver and deductive expert in the field at issue,

see Carlevaris, Commento, supra, 380 and ff.). 108

Fouchard, Gaillard, Goldman, International Commercial Arbitration, 1999, The Hague and

elsewhere, 705. 109

See e.g. Paris Court of Appeal, February 12, 1993, Unchips Finanziaria c. Gesnouin, in Revue de

l'arbitrage, 1993, 255 and ff. and in Yearbook Commercial Arbitration, XIX, 1994, 658 and ff. 110

See order in ICC case no. 5715, in Hascher, Collection, supra, 145 and 147 and ff. and in Journal de

droit international, 1996, 123 and ff., with note of the same author. 111

Blessing, The Arbitral Process. Part III: The Procedure Before the Arbitral Tribunal, in ICC

Bulletin, 1992, vol. 3, n. 2, 18 and ff., and in particular 21. 112

Jones, Party Appointed Experts, supra, 150. As to the appointment of an expert, Blessing, The

Arbitral Process, supra, and in particular § 5, proposes that the parties agree to communicate the tribunal

within a certain date a list of three up to five names of experts and that the parties may within a further date

comment on the list of the other, being understood that failing an agreement on the name of the expert to

appointment the tribunal will decide. 113

On British system, see Sutton, Gill, Gearing, Russell, supra, 246. 114

Patocchi, Meakin, Procedure and the Taking of Evidence, supra, in particular § G. 115

Carlevaris, Commento, supra, 388, who remembers that national legislations leave the widest

freedom in this regard. Uncitral Notes and in particular points 69-73 may be used as guide for the

regulation of consultancy proceeding. 116

Especially in the Model Law: see Binder, International Commercial Arbitration, supra, 324. 117

While in 2010 the part of article 6 par. 3 IBA Rules - appearing to leave to experts the decision of

relevance and admissibility of documents and other information requested - was deleted. 118

See e.g. article 27 Uncitral Rules and articles 22, paragraphs 2 and 4 AAA. Rules 119

See von Segesser, The IBA Rules, supra, 749; Kühner, The Revised IBA, supra, 673 and article 27

par. 3 Uncitral Rules. Adde van Hof, Commentary, supra, 196, who specifies that limit the number of

replies would help in avoiding non better identified fishing expeditions. 120

This is following the amendments to article 6 that previously provided for such right of the parties

only with reference to documents obtained by the experts. From the same “guaranteeing” point of view see

the provisions, remembered by Ricci, E. F., La prova nell’arbitrato internazionale, supra, in particular § 4,

which ensure that the experts produce a written report, that such report is disclosed to the parties, that these

have the possibility to question the expert during an hearing etc.

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Moreover, the parties can always claim in respect of any alleged irregularity committed by the

experts while using their powers121

.

Still, it would be necessary to expressly authorize the expert to appoint possible substitutes, this

being otherwise prohibited by many national legislations122

.

In a view of complying with due process, it would be advisable prima facie to avoid meeting

“ex parte” (without the parties) between the tribunal and the expert123

, although it has been noted

that it may occasionally be necessary to avoid, for instance, experts being intimidated or

influenced by the litigants (and actually some case law in this respect does exist)124

.

From their side, courts deny the lawfulness of such meetings when certain activities to which the

parties should have had the possibility to participate are carried out (for instance meeting for the

examination of evidence125

), while in the remaining cases courts consider such behavior not

sufficient to have the award set aside126

, but nonetheless relevant in case real damage to the party

was done and on condition that the relevant exception was raised during the arbitration127

.

About the in-taking, except for cases in which the report contains calculations or math

functions, the tribunal expert is usually questioned128

and according to the praxis (and now also

by IBA Rules) in this phase the parties may be supported by their experts129

.

Finally, as to the costs of the experts, the tribunal will decide who shall have to bear them, and

this usually when delivering the final decision130

or, sometimes, there are interim payment orders

in respect advances during the trial131

.

121

See articles 6 par. 3 of the IBA Rules (which makes reference to the procedure provided for by

article 3, paragraphs 5-8, on accidents and contrasts between the parties on the disclosure of documents)

and 27 of the Uncitral Rules 122

See article 1717 Italian civil code and, for a comparative review in this respect, Matray, Les traits

caractéristique, supra, 133. 123

Sutton, Gill, Gearing, supra and in particular footnote 484 for reference to case law (the authors

remember that the circumstance could justify an appeal for nullity of the award for serious irregularity

pursuant to article 68, paragraph 2 lett. a) AA). 124

For admissibility of such meetings within the limits indicated by case law, see order in ICC case no.

5715/1996 and the relevant comment in Hascher, Collection, supra, 144. 125

See the decision in Husmann Europe Ltd. c. Al Ameen Development & Trade Co., in Lloyd's Rep.,

2000, 2, 83 and ff.. 126

Paris Court of Appeal, March 13 1973, Baumajs c. S.C.I. Martin Nadaud Cimarna, in Revue de

l'arbitrage, 1973, 176 and ff.; Paris Court of Appeal, June 25 1993, Schönenberger Systematechnik GmbH

v. S.A. Vens, in Revue de l'arbitrage, 1993, 685 and ff., with note of Bureau. 127

See e.g. Singapore Supreme Court, September 13 2004, 4SLR 705, Luzon Hydro Corp. v. Transfield

Philippines Inc., in Jarvin, Magnusson (eds.), International Arbitration Court Decisions, New York, 2008,

725 and ff., where the judges rejected the appeal to an ICC award, denying that could amount to a breach

of natural justice the fact that the expert had acted exceeding his/her assignment and, above all, that

arbitrators based the expert evidence on information and evidence obtained by the expert not in writing but

orally, during the meeting without the parties. Arbitrators, communicating it in advance to the parties, gave

to the expert many "administrative" tasks (examination of documents and acts of the proceeding,

recollection of technical attachments, assistance to the panel in the draft of the award etc.) and therefore

more than one time meeting were held among them in the absence of the parties. Rejecting the proposed

appeal, the court considered that having the tribunal previously communicate to the parties the tasks given

to the expert and since the parties did not object to anything during the proceedings, any claim and

evaluation on the point should have been foreclosed in the appeal for nullity. 128

Beside that in the above mentioned arbitral regulation, also certain national systems, such as the

Egyptian and Russian ones (see in this respect article 24 law on commercial arbitration), expressly provide

for the possibility to question court experts. The rules on the interrogation will be in principle the general

ones, contained in the mentioned article 8 IBA Rules or in article 21 LCIA Rules, and experts will be

questioned as normal witnesses. 129

See ex multis, procedural order of May 22, 2003, in the ICC case no. 11250, in Hascher, Decisions

on ICC, supra and now article 6 par. 6 IBA Rules.

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4.3 […] Expert Evidence and the decision

We already mentioned that the tribunal expert assists the decision of the arbitrators, but

tribunal experts do not assume an adjudicator's role: “a tribunal-appointed expert […] is not an

adjudicator and can do no more than assist the arbitrator”132

. Arbitrators, as any other judge, are

not bound by the expert report133

and may freely depart from it, given adequate reasoning134

.

Article 31 of the NAI Rules, for instance, makes expressly clear such point, reading that “(t)he

arbitral tribunal shall not be obligated to follow the experts’ advice if it is not in conformity with

its own convictions”135

. The IBA Rules, also, specify that the tribunal shall evaluate any technical

consultancy "with due regard to all circumstances of the case".

The above principle is repeatedly (and theoretically) affirmed in previous arbitration cases136

as well as by the Iran- US Claims Tribunal precedents137

.

Nonetheless, arbitrators, like national courts, are inclined to follow the expert conclusions138

and

relevant practice confirms it139

.

The above mentioned means to guarantee experts' impartiality allow, as much as possible, the

parties and national courts to evaluate the experts' reliability and to control the conclusion they

reach, which was eventually endorsed by the arbitrators in their award.

Moreover, according to arbitral practice, increasingly an expert's professionalism is evaluated

according to objective criteria and tests or other similar standards, which seem to recall those

130

See article 21 par. 3 LCIA Rules and article 6 last par. IBA Rules. 131

See procedural order of February 28, 1989, in ICC case no. 5715/1996, in Hascher, Collection,

supra, 144 and ff. See also Carlevaris, Commento, supra, 388, who – remembering that such possibility

was in the past admitted by article 31 par. 2 ICC Rules (now article 36) on the anticipation of costs –

clarifies that, where the rule is silent, a decision in this sense could be incorporated into a procedural order,

not being necessarily an award on the issue. Especially on the aspects of expert evidence’s costs, shall be

reaffirmed the utility of the indications provided for in the aforementioned 2007 ICC report, on

“Techniques for Controlling Time and Costs in Arbitration”. 132

Freyer, Assessing Expert Evidence, supra, § 2 b). 133

Carlevaris, Commento, supra, 383. See also Turner, Mohtashami, A Guide to the LCIA, supra, 136:

"the report prepared by the tribunal-appointed expert is not intended to bind the tribunal, and should be

judged on the same basis as any other expert evidence proffered in the proceedings". 134

See e.g. the award issued in ICC case no. 9608/1998, in Arnaldez, Derains, Hascher (eds.),

Collection of ICC Arbitral Awards 2001-2007, Alphen aan den Rijn and elsewhere, 2009, 669 and ff. 135

For a comment on this provision, see van der Bend, Leijten, Ynzonides, A Guide to the NAI

Arbitration Rules, Alphen an den Rijn, 2009, in particular 150. 136

See the award rendered in ICC case no. 9608/1998, in Arnaldez, Derains, Hascher, Collection,

supra, in particular 674: "cette règle s'applique également dans le cadre des procédure arbitrales où le

tribunal arbitrale ne peut pas déléguer à l'expert la mission juridictionnelle qui lui est confiée par les

parties". 137

Iran – US Claims Tribunal, case Starrett Housing Corp. c. Iran, no. 314-24-1, in Iran-US Claims

Tribunal Reports, 16, in particular196: “experts are not relied on to dictate to the decision-maker what the

final result should be”. 138

De Nova, Un arbitro e la “verità scientifica”, in Decisione giudiziaria, supra, in particular 51;

Turner, Mohtashami, A Guide, supra, 136: "(a)s a matter of practise, however, such reports are generally

accorded a great deal of weight by the tribunal, which is perhaps to be expected given the independence

and neutrality of the expert". Accordingly, Derains, Schwartz, A Guide, supra, in particular 278. 139

See e.g. the award issued in the arbitration conducted under the Rules of theCairo Regional Centre

for International Commercial Arbitration (“CRCICA”), April 30, 1998, case no. 102/1997, in Eldin, M.,

Eldin, A. (ed.), Arbitral Awards of the Cairo Regional Centre for International Commercial Arbitration, II,

1997-2000, The Hague, 2003.

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created by US courts in regard to civil procedure140

to control the risk of low impartiality of

experts and the related low reliability141

.

These are only little improvements and "eager" attempts, however their mention is useful to

show, once more, as the subject matter is a privileged starting point from where attempting to

solve unsettled contemporary civil procedure issues.

5. Expert Evidence regarding issues of law. Thoughts on the relevance of the iura novit curia

principle in international arbitration

The last issue on which it is necessary to briefly focus on is the resort to expert evidence on

the existence, content and ratio law provisions, about which extensive examples and precedents

may be found in commercial arbitration, although no mention is made to it in the various

regulations142

.

In particular, resort to expert evidence regarding law issues is made both where it is necessary to

assess which is the applicable law to the dispute (i.e. on substantive law issues) and when it is

necessary to explore procedural rules143

.

It must be noted that it is not surprising that the resort to party experts regarding issues of law in

arbitral proceedings is much more frequent than the appointment of a tribunal expert on the same

issues144

. The topic under discussion, relating also to the burden of proof, touches to the well

known and complex debate on the validity in international arbitration of the iura novit curia

principle145

, which is here impossible to properly expand on146

. Suffice to say that a mitigated

140

Reference is made to US case law which defined parameters such as testability, peer review, rate of

error, general acceptance, requesting the indication of expert publications on the subject matter, of last

cases on which the expert worked, of possible academic awards etc.: see amplius Dondi, Paradigmi

processuali, supra, in particular 267; Taruffo, Le prove scientifiche nella recente esperienza statunitense,

in Riv. trim. dir. proc. civ., 1996, 219 and ff.; see also Ansanelli, Comparazione e ricomparazione in tema

di expert witness testimony, supra, passim and Id., La consulenza tecnica, supra, in particular 281 and the

references made in footnotes 80 and ff. 141

See for arbitral case law in this respect, Cato, Arbitration Practice, supra, in particular 761 and ff. 142

Carlevaris, Commento, supra, 381, remembered that in the 1955 version of ICC Rules the possibility

that arbitrator could be assisted by expert on law issues was allowed, but in the following versions any

reference to such possibility was deleted. With reference to the Italian system see Odorisio, Nomina di un

consulente tecnico per la soluzione delle questioni giuridiche sorte nel corso di un giudizio arbitrale:

nullità del lodo e limiti del giudizio di rinvio, in Giur. mer. 1995, 503 and ff. and Rubino Sammartano,

Divieto all'arbitro di nominare un consulente tecnico giuridico o incapacità dell'arbitro?, in Foro pad.,

1990, I, 280 and ff. In arbitral praxis see e.g. proc. ord. in ICC case no. 6848/1995, in Hascher, Collection,

supra, in particular 120 and ff., by which the arbitral tribunal admitted the expert evidence on foreign law,

affirming that it was in line with the praxis applied by International courts (for which foreign law is a fact:

see e.g. Witenberg, La théorie des preuves devant les jurisdiction internationales, in Recueil des cours de

l’Académie de droit international de La Haye, 1936, 34 and ff.). 143

See Sutton, Gill, Gearing, Russell, supra, 246, and the mentioned case law in footnote 476. 144

Bermann remembers that in Cross-examining the legal expert, in Newman, L. W., Sheppard, B. H.

Jr., Take the Witness, supra, 181 and ff., in particular182. About the praxis see e.g.the partial award of

March 2002 issued in ICC case no. 11375, in ICC Bulletin, Special Supplement 2005: UNIDROIT

Principles: New Developments and Applications, Paris, 2005; as well as the case law of Singapore

Supreme Court, before which an ICC award was appealed, in Jarvin, Magnusson, International

Arbitration, supra, 725 and ff. and in particular 727. 145

See supra, chapter 2, § 9.1. 146

On the issue, in general, see – amongst others – Kurkela, Due Process, supra, 171 ff., who speaks

about a burden of education and wonders on who, between parties and the arbitrators, should carry it;

Carlevaris, Commento, supra, 381; Id., L'accertamento del diritto nell'arbitrato internazionale tra

principio jura novit curia e onere della prova, in Riv. arb., 2007, 4, 505 and ff.; Corapi, Iura novit curia

nell'arbitrato internazionale, in Dir. comm. int., 2010, 3, 429 ff.; Carbone, S. M., Iura novit curia e

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tendency seems to prevail, in the sense that – save for different specific provisions contained in

the law applicable to the substantive relation between the parties – arbitrators would have a duty

to know the law and apply it on their own motion, only in respect of public policy rules, and

provided that such duty is performed in respect of due process147

.

Given such premises, the resort to tribunal expert, instead, would hardly be possible

whenever, according to the law applicable to the relationship, a certain party has the burden of

proof of the existence and content of a specific rule, since – doing so – the arbitral tribunal would

relieve that party from its burden. In such case, said ability shall be thus limited to the existence

of an agreement of the parties that, authorizing the tribunal to do so, would in fact have actually

executed an agreement to derogate to the applicable rules on allocation of the burden of proof.

In conclusion, and considering that in certain cases the appointment of a tribunal expert on

law issues may be necessary148

, one may add that it be admissible on conditions that: i. the “judge

is not a lawyer”149

; ii. the parties previously agreed on that150

or they conferred on that during the

proceedings as above indicated; iii. in any case, only on single and specific issues151

and never

referring to the expert the whole decision of the issue152

.

6. Final remarks: expert evidence, procedural law in international arbitration and the chance of

“bridging” the divide between different procedural traditions

The overall evaluation on the above regulation gives us the possibility to affirm that, as of

today, observing the frequent resort to expert evidence153

, the main issues that remain open

concern both the aim of guaranteeing the experts’ impartiality and the necessity to save costs and

times during the proceedings.

While many of the proposals advanced and aimed at widening the aforementioned guarantees

may be viewed as positive, it would also be helpful to foster the existing praxis on the

arbitrato commerciale internazionale, in Riv. dir. int. priv. proc., 2010, 2, 353 ff.; Giovannini,

International arbitration and Jura Novit Curia - Towards Harmonization, in Fernández, Ballesteros, Arias

(eds.), Liber Amicorum Bernardo Cremades, Las Rozas (Madrid), 2010, 495 and ff. and, lastly,

Waincymer, International Arbitration and the Duty to Know the Law, in Journal of International

Arbitration, 2011, 3, 201 ff. 147

See Chainais, L’arbitre, le droitet la contradiction: l’office du juge arbitral à la recherche de son

point d’équilibre, in Revue de l’arbitrage, 2010, 3 and ff., who, inter alia, speaks about a “gigantisme des

règlementations”. 148

It must be recalled the need to understand foreign law provisions, on which article 14 l. no. 218/1995

(containing the Italian international private law discipline) gives the possibility to appoint experts (and to

the parties’ collaboration). 149

See Tota, Commento all’art. 816-ter civil procedure code, supra, in particular 725 and the references

mentioned in footnotes 56-59. 150

And also when such authorization is implicitly granted by the parties through a well known praxis of

the arbitral institution selected (Briguglio, Due questioni in tema di delibazione del lodo straniero e ordine

pubblico, in Riv. arb., 1991, 813, commenting to a decision of the Bundesverfassungerichtshof, January 18

1990, which considered that the appointment of an expert on law issues was not a breach to general

principles of civil procedure law. 151

On the need for a referral to “specific” issues, see the award mentioned by Carlevaris, Commento,

supra, 382, in Journal du droit International, 1994, 1088 and ff., with comment of Hascher. 152

See also De Nova, Un arbitro, supra, in particular 52-53. The statement that the expert "is to advise,

not decide" is valid especially with respect to expert evidence on law issues (Tackaberry, Marriott,

Bernstein's Handbook of Arbitration and Dispute Resolution Practice, London, 2003, 272). 153

As for any judge, also the lawfulness of arbitral awards is not only based upon the compliance with

procedure law but also on “their technical accuracy [that] reinforces their procedural legitimacy” (Taruffo,

Conoscenza scientifica, supra, in particular 6 where the author notice also that the ongoing evolution

shows a decreasing resort to private knowledge of the judge and an increase of the resort to the scientists

support during trials).

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appointment of a single joint expert exploiting importance of the agreement of the parties (and

avoiding that these appoint their own expert) as well as, for instance, granting the arbitral

institution with powers of selecting a single joint expert either in case of disagreement between

the parties or in order to preserve the necessary impartiality154

.

Further studies could surely focus on the project to foster the appointment of a panel composed

also by technicians, and not only by lawyers155

.

Aside from the difficult task of creating specialized panels, arbitral institutions could perhaps

consider the option of including in their bodies assistant rapporteurs, who will serve the tribunal

whenever necessary, without lavishly increasing costs (as usually does the appointment of

experts)156

.

These are all proposals, as it is evident, that can be shared or inspired from previous

experiences that regarded single national procedural systems, proposals that can be mixed and

compared in international arbitration, creating a unique, “combined” or “compromise” procedural

model for adjudication of commercial disputes between parties of different nationalities. A model

that, stemming from a scenario devoid of State prerogatives, in the future could even become, in

our opinion, a source of inspiration for the aforesaid national legal traditions.

154

As happened in ICC case no. 11250: see ord. May 22 2003 in Decisions on ICC, supra, where it was

stated that “in order to determine the exact quantum of damages due to the Respondent by the Claimant,

and in order to comply with the principle of due process and adversary procedure, the Arbitral Tribunal

and the Parties have agreed to request the ICC International Centre for Expertise to propose an expert,

which shall be appointed by the Arbitral Tribunal”. 155

See Redfern, Experts and Arbitrators - An International Perspective, in International Arbitration

Law Review, 2001, 4, 105 and ff., in particular 109. Landsman, in Cross-examining, supra, in particular

170, remembers the usefulness to appoint legal advisors expert also in the field at stake. 156

These are already mentioned, for example, by article 37 of the English AA, which - beside the expert

- provides that the tribunal could "appoint assessors to assist it on technical matters". It is important to

notice how these solutions were sorted to face with the same kind of issues already with reference to the

proceeding before EU courts: see De La Serre, Sibony, Expert Evidence, supra, in particular 980-981,

according to whom, among the solutions to increase the efficacy of technical experts in such proceeding,

the proposal to provide for more guarantees to the resort of party expert is that of adopting more structural

changeswhich would assists the court integrating their knowledge, by setting forth–for instance - court’s

assessors.