27 Oct 2020

Independence and impartiality of experts in arbitration and court proceedings

Do experts in arbitration and court proceedings help tribunals in making decisions or they are just instruments a party?

Experts in arbitration and court proceedings have the task of assisting arbitrators and judges, in connection with complex issues related to a particular field. These experts possess specialized knowledge in various fields and help the arbitral tribunal and judges to better understand the problem that is being adjudicated. Experts make an exceptional contribution to the accurate assessment of the facts of the case since the tribunal itself often does not have the necessary expertise in a certain field. Even in the case when some of the members of the tribunal possess particular expertise, the participation of experts is benefitiary, since they help further clarifies the disputed issue.

One of the dilemmas regarding experts is whether (and to what extent) they should be independent and impartial. In this regard, it is important to distinguish between experts appointed by the tribunal or court itself and experts appointed by the parties in the proceedings. When it comes to the first category, that is, the experts appointed by the tribunal or court, they should be completely impartial and independent.  The degree of independence and impartiality required from this group of experts is often equated with the degree of independence and impartiality required from the arbitrators or judges themselves, that is, the highest degree of independence and impartiality.

What are the rules for experts appointed by parties in the arbitration proceedings?

The situation is much more controversial when it comes to the second group of experts – the ones who are appointed by the parties in the arbitration procedure.  When it comes to different rules applied in arbitration proceedings such as LCIA Arbitration Rules, AAA Rules, UNCITRAL Arbitration Rules, etc., they either do not contain or very poorly regulate the position of experts appointed by the parties.  For example, LCIA Arbitration Rules (London Court of International Arbitration Rules), Article 21 explicitly regulates the position of experts appointed by the tribunal.  On the other hand, experts appointed by a party are only mentioned in several places in the context of being considered like additional evidence, which means that these rules recognize the possibility for experts appointed by a party to participate in the proceedings, but do not specify whether this they should be impartial and independent.  Therefore, it is necessary to draw parallels, make analogies, and in other ways try to determine the position of this group of experts when it comes to independence and impartiality.

What about experts appointed by parties in the court proceedings? 

The problem of an expert’s impartial opinion is also present before the court. Namely, our Court Experts Act requires experts to perform expertise conscientiously, professionally, and impartially. However, the notion of impartiality is not further specified. The practical problem with an expert’s biased opinion, both in arbitration and in court proceedings, is that it is given high importance and weight, and can have extremely negative consequences if it leads the decision-maker to make a wrong decision.

Independence and impartiality – theory vs practice

Moreover, there are also different theoretical views on whether the position of experts, when it comes to the degree of independence and impartiality, is similar to witnesses, experts appointed by the tribunal, or are they like party representatives?

The answer to this question is even more complicated for experts appointed by the parties, given the existence of a discrepancy between “what should happen” and what actually happens in practice. It is a very common theoretical view that, although a party appoints an expert, their primary responsibility should remain to the tribunal. Nevertheless, the shortcoming of this theory is that it makes the role of an expert lose its meaning, assuming they always provide an expert opinion in favor of the party that appointed them.

The second common opinion is that it is impossible to expect independence and impartiality from an expert appointed by one of the parties. Finally, there are many who share the view that, regardless of who appoints an expert, their primary role should be to help the tribunal, but accept that there is a great discrepancy between these ideals and the reality.

Further concerns regarding the participation of experts in the procedure are related to the very reason for appointing them. When appointing an expert, one must also take into account whether the party has a certain “hidden motive”, such as delaying the procedure. However, since the appointment of experts is an integral part of a party’s right to present its case, the tribunal mostly has its hands tied even in case of abuse.

Precisely the lack of independence and impartiality of experts, and the abuse of the reason for appointing them by the parties, may lead the decision-makers the reach the wrong decision. On the other hand, if experts are not allowed to express their opinion, the party may complain about the violation of their right to present their case, and can request annulment of the court or arbitration decision, leadig to the it not being recognized and executed. Article V § 1 (b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards states that one of the reasons for not recognizing and enforcing the award is precisely that the experts were not allowed to present their opinion. Thus, the exclusion of experts from the proceedings, regardless of the degree of independence and impartiality, is considered “risky” to some extent, as it may call into question the arbitral or court award itself.

In a manner of conclusion…

The best-case scenario would be that the experts in arbitration and court proceedings fulfill their primary duty to the tribunal. However, the biased or not very helpful testimony represents a risk that the tribunal or the judges must take upon themselves since they cannot violate a party’s right to present their case.

Authors: Danica Misojčić and Mina Kuzminac