On 30th September 2021, the CIArb London Branch and Bryan Cave Leighton Paisner LLP held a hybrid (in-person and online) seminar focussing on the use of party-appointed experts. The event marked the launch of the BCLP Arbitration Survey 2021, “Expert Evidence in International Arbitration: Saving the Party-Appointed Expert”.

The distinguished panel of speakers comprised of Professor Janet Walker, Julian Lew QC, Claire Morel de Westgaver, Chudozie Okongwu and Wendy MacLaughlin. The discussion was moderated by George Burn and introduced by Daniel Djanogly FCA FCIArb CArb.

Claire Morel de Westgaver, who was primarily responsible for the Survey alongside Victoria Clark from BCLP, provided a brief summary of the key findings of the Survey:

The respondents highlighted the crucial importance of party-appointed experts, with 96% saying the right to use them is an essential feature in international arbitration, while 84% of respondents thought that it was a basic right of each party to rely on a party-appointed expert;
The Survey asked whether party-appointed experts were advocates in disguise or hired guns - 51% of respondents agreed that party-appointed experts are "hired guns" but, of that 51%, 24% did not think that this was a problem;
The dual role of an expert as advisor in the early stages of a dispute and as testifying expert later is a common practice, for which the Survey found broad support;
52% of respondents did not think there should be greater control over the use of party-appointed experts, and 47% felt that the tribunal should have primary responsibility for controlling the use of party-appointed experts;
Hot-tubbing is increasingly popular, but there is a disagreement about its efficiency;
93% of respondents thought that a tribunal should give little weight to the evidence of a party-appointed expert who breaches their duty to remain independent and assist the tribunal.

One of the key themes of the discussion was how much parties value the opportunity to appoint their experts. It always helps to have different perspectives, and the different understanding of the case's background that an expert can provide. Experts can also educate arbitrators on the subject-matter and help them make the best decision they can.

The panellists discussed the “hired guns” problem. While relatively high numbers of respondents agreed that experts can be hired guns, only half of respondents actually considered this to be a problem. It seems that, in general, arbitrators know how to recognise hired guns, and such experts undermine their own side if they come over as too much of an advocate.

The panel agreed that experts are generally beneficial to the international arbitration process. Most experts genuinely want to help, they try to answer questions and they tell the truth. The panel also reflected on what is actually meant by independence and impartiality in the context of a party-appointed expert. In the context of arbitrators, this is set out in law and arbitration rules; in the case of party-appointed experts, this issue is more complicated.

At the end of the seminar there was an interactive discussion with insights and questions from the audience. One of the points raised by the audience related to the topic of tribunals with expertise in the disputed matter. In some types of arbitrations, like maritime disputes, technical expertise on the tribunal is actually expected. This changes the relationship between the tribunal and the party-appointed experts.

The discussion was followed by a drinks reception for in-person attendees, generously hosted by BCLP.

The BCLP Arbitration Survey 2021, “Expert Evidence in International Arbitration: Saving the Party-Appointed Expert”, can be downloaded here.

Reported by Robin Hayden ACIArb and Natalia Otlinger MCIArb