Managing the expert witness in arbitration proceedings
Produced in partnership with Charles Spragge of Druces
Managing the expert witness in arbitration proceedings

The following Arbitration practice note Produced in partnership with Charles Spragge of Druces provides comprehensive and up to date legal information covering:

  • Managing the expert witness in arbitration proceedings
  • Is expert evidence needed?
  • When to instruct the expert?
  • Instructing the expert
  • The expert’s report
  • The meeting of experts
  • Presentation of evidence
  • Concurrent expert evidence (hot-tubbing)
  • Tribunal appointed experts
  • Tips for controlling costs in using expert witnesses

Is expert evidence needed?

Before deciding whether to instruct an expert, you must define as precisely as possible the issues on which an opinion may be needed. Can the issues be defined clearly and are they limited to one area of expertise. If they straddle different fields, are multiple experts needed or could one expert cover all of them? If the area is highly technical consider that it may be difficult to find a suitable expert at all.

Instructing an expert is a significant step in any proceedings: the cost can be high and it entails ceding a degree of control to the tribunal to whom the expert’s primary duty (as a matter of English law at least) is owed, not to the appointing party (The Ikarian Reefer [1993] 2 Lloyds Rep. 68. Not available in Lexis®Library). It is therefore sensible always to consider carefully whether this step is needed at all. The ICC’s report on Controlling Time and Costs in Arbitration sets out a presumption that expert evidence is not in fact needed.

If the tribunal includes an arbitrator with relevant experience, consider whether they will need an expert, or will they consider they have sufficient expertise? Of course, unless you know the arbitrator’s view on the issue you may consider it unduly risky to proceed without your own appointed expert.

Practice Note: Damages experts in international

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