Expert evidence in arbitration serves as an important tool in providing clarity on specialised issues
and assessing damages. However, its admission and utilisation come with their own set of considerations, particularly in international settings. In this short guide, we will delve into the nuances of expert evidence in arbitration, exploring its importance, challenges, and best practices.
The Importance of Expert Evidence in Arbitration
Expert evidence may play an important role in arbitration for several reasons, including the
following.
- Evidentiary Support: Expert opinions provide empirical evidence and analysis to substantiate
claims, making them more persuasive and credible. - Neutral Evaluation: Arbitrators, who may lack expertise in certain fields relevant to the dispute,
may rely on expert opinions to make informed decisions. These opinions may help ensure accuracy and effectiveness in the dispute resolution process. - Technical Complexity: Many arbitration cases involve technical, scientific, or financial matters that require specialised knowledge to interpret. Experts provide clarity and context to these complexities, aiding arbitrators in understanding the nuances of the case.
- Damage Assessment: In disputes involving financial damages, experts may play a role in assessing the extent of losses incurred and determining compensation. Their analyses can influence the magnitude of awards granted by arbitrators.
Challenges in Evaluating Expert Evidence
While expert evidence is helpful, its evaluation in arbitration presents certain challenges.
- Expert Bias: There is always a risk of bias, conscious or unconscious, on the part of the experts.
Arbitrators must critically evaluate the independence and objectivity of experts to avoid undue
influence on their decision-making. - Conflicting Expert Testimony: In contentious cases, each party may present its own experts,
leading to conflicting opinions. Arbitrators must carefully weigh the credibility and persuasiveness of opposing expert testimonies. - Complexity of Subject Matter: Effective communication and presentation of expert evidence are
crucial to ensure clarity and understanding. - Procedural Issues: Unlike in litigation, where rules of evidence are typically well-defined,
arbitration procedures vary and may lack specific guidelines for admitting and evaluating expert evidence, leaving the decision-making on procedural issues ultimately to the arbitrators.
Best Practices for Utilising Expert Evidence
To overcome these challenges and maximise the effectiveness of expert evidence in arbitration,
parties and arbitrators may consider, inter alia, the following matters.
- Early Identification of Experts: Parties may wish to identify and retain expert witnesses early in the arbitration process to allow sufficient time for preparation and collaboration.
- Transparency and Disclosure: Experts may have an obligation to disclose any potential conflicts of interest or biases to maintain their credibility and integrity.
- Clear and Concise Reports: Expert reports should be clear, concise, and easily understandable,
even to non-specialists. Visual aids such as charts, graphs, and diagrams can enhance
comprehension. - Effective Cross-Examination: Effective cross-examination of experts should be arranged and
allowed in the arbitration process to test the validity of their opinions and identify any weaknesses or inconsistencies. - Use of Expert Testimony in Decision-Making: While expert evidence is valuable, arbitrators should exercise discretion in its use to determine the case, ensuring relevance and reliability while avoiding undue reliance on partisan opinions.
Conclusion
Expert evidence plays a helpful role in arbitration, aiding arbitrators to navigate complex issues and reach informed decisions. However, its evaluation requires consideration. By adhering to best
practices, parties and arbitrators can effectively harness the power of expert evidence to resolve
disputes effectively.
