Expert witnesses are a common sight in arbitration. From engineers and quantity surveyors in construction disputes, to bankers explaining complex financial products, to accountants and economists calculating losses, to lawyers opining on principles of an unfamiliar law, their evidence is crucial to many disputes. Their role is to give objective and professional expert opinions to assist the tribunal in resolving the dispute, but they are typically (at least in Singapore) selected and appointed by the parties and their legal teams.
On 5 December 2019, close to 90 delegates assembled to hear leading younger members of the arbitration community debate whether expert evidence requires a shake-up. Should arbitral tribunals be using their powers to appoint their own experts much more often, either to supplement or as a replacement for the evidence of party-appointed experts?
With well-known forensic accountant and expert witness Richard Hayler (Deloitte) presiding as moderator, the debaters and judges included individuals approaching the debate from the perspective of both arbitration counsel and expert, and with experience from a range of jurisdictions.
Proposing the motion “This House Believes That Arbitral Tribunals Should Appoint Their Own Experts As A Matter of Course” were Chloé Vialard (Shearman & Sterling) and Maximilian Benz (HKA). Chloé began by emphasising that the role of an expert witness is to educate the tribunal in areas where they need assistance. An expert appointed by the tribunal can approach this task truly independently. Drawing upon her experience as a French avocat, Chloé reminded the audience that civil law countries have long adopted this approach, not only in Europe, but in Japan, Korea and other Asian jurisdictions. English and Australian courts have more recently moved to “single joint experts”; there were proposals for the Singapore courts to do so from 2020; and arbitral tribunals should see the light too. Max took on the criticism that a tribunal-appointed expert would increase costs, because there would be three experts, rather than two. Not true: it would save costs. Whilst parties should have the option to instruct their own experts in addition, this would not always be necessary. Where it was, the tribunal expert would do the heavy lifting, a clearer picture would emerge, and the party-appointed experts would review a more focused range of issues.
Elan Krishna (Clifford Chance Asia) and Nicholas Poon (Breakpoint LLC) tacked these arguments head-on. “Expert witnesses are very much like amateur tennis players” said Elan. In the amateur game, players make their own line calls, and quickly gain a bad reputation if they make dishonest calls. A similar “self-policing” mechanism operates for expert witnesses in the close-knit world of arbitration. Experts are not merely “hired guns”, and differences of opinion are genuine. The common law approach of “iron sharpens iron” ensures opposing views are presented and the tribunal can choose. The cost reduction which Max had argued would ensue from party-appointed experts “was an illusion” added Nicolas. Parties would always want their own experts in the background. Moreover, the motion would mean parties giving up control over the process, contrary to the fundamental principle of party-autonomy.
Members of the audience then quizzed the debaters. Nicolas’s invocation of party autonomy resonated with some: how could tribunals appointing their own experts “as a matter of course” be consistent with that, one questioner demanded? The power is in existing arbitral rules, which also contain safeguards including consultation with the parties, responded Chloé. Then it was over to the panel of judges, Shilppa Sabarinathann (Matson Driscoll & Damico), Kate Apostolova (Freshfields Bruckhaus Deringer) and Wendy Lin (Wong Partnership), to test the arguments. Wendy was sceptical of the opponents’ “self-policing” argument. Shilppa wanted to know whether tribunal-appointed experts would have any different liability for professional negligence compared to party-appointees, and whether this might affect the effectiveness of the arbitral process; a tricky question for both debating teams!
A show of hands before the speeches showed only 4 members of the audience in favour of the motion, but a similar audience poll revealed hardly any of them had been involved in a case where a tribunal had appointed its own expert. From this unpromising starting point, the proponents changed minds. By the end of the debate, audience votes in favour had risen to 13. And although a majority of the audience remained unconvinced, the majority of the judges were persuaded and, in a split decision, handed victory to the proponents.
The official business over, many of the audience joined the speakers at the networking drinks, which rounded off the evening and SIArb’s programme of events for 2019.
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Andrew Pullen – Fountain Court Chambers