ICC Articles

Introduction

The procedural stage of the international commercial arbitration process is generally characterised by a high degree of flexibility. And flexibility is particularly necessary when dealing with the issue of witness evidence, since parties to arbitration proceedings are liable to come from countries having legal cultures with fundamentally different conceptions as to the role of witnesses. The differences are likely to be even more marked when it comes to the role of experts in legal proceedings, as will be discussed below.

One of the successes of the international commercial arbitration process has been that the potential difficulties to which such marked differences in expectations may give rise have largely been avoided. Arbitration laws and, to a greater extent, rules for arbitration proceedings have a part to play here. But these commonly provide no more than a broad framework. It is the custom and practice developed by arbitrators and counsel within this framework that has proved to be the basis for the success of the process, not least as regards the question of evidence from experts.

This brief paper seeks to show why such potential difficulties could arise, by reference to the role of the expert in two still fundamentally different systems, i.e. in French and English civil procedure. It will then discuss the impact of arbitration law and rules, with a view to showing how they generally provided a framework, in more or less general terms, within which a compromise approach to expert evidence has been able to flourish. [Page77:]

Experts in french procedure

French civil procedure typifies the approach adopted in numerous "civil law" jurisdictions, in that it reflects what would appear to someone from a common law jurisdiction as a distrust of oral evidence. The French view was summed up by Antoine Loysel in his "Institutes of Customary Law" first published in the 16th Century:

"Qui mieux abreuve, mieux preuve" ("a witness who is well wined and dined will testify well").

This leads to a procedural system in which weight is given primarily to documentary evidence. There has been no real move to promote a greater role for oral evidence on grounds, for example, that direct evidence of a witness could be tested by some form of the cross-examination procedure dear to common law practitioners.

This is not to say that individuals who saw, heard or did something will never be asked to give evidence. Thus, there is an "enquête" procedure that allows magistrates to question such individuals directly. And there is the "expertise" procedure which is geared to dealing with complex technical issues in particular. This is where the expert plays a central role, although not as a "witness" in the common law sense of the term. If anything, experts in French civil proceedings are more on the court's side of the fence.

Thus, in French proceedings, an expert is a court appointee, although generally as a result of an application by a party rather than the "ex officio" exercise by the court of its own powers. The expert must be chosen from a court list - in other words, one can only act in French proceedings as an expert if one has been formally recognised as an expert by the State.

Generally only one expert will be appointed. It may be possible to have additional experts appointed but the view is that, in general, one should suffice for any given technical issue, since, in his capacity as an "auxiliaire de justice", the expert is expected to be independent and to act impartially. Finally, the expert is paid directly by the court out of costs advances payable by the parties.

The duty of the expert is to report to the Court upon the technical issue with which the court requires his assistance. In order to do so it is the expert's further duty to organise the "expertise" procedure so that the relevant information can be made available to him. Here, the parties play an important[Page78:] although secondary role. They are likely to be the source of much of the information and documentation that the expert will need, but it is the expert himself who will make the final decision in this regard. And if he requires further information, then the expert is empowered to request it from the parties. He may even question the parties or their representatives himself as to their involvement in matters relating to the issue in question.

The expert will invite the parties to attend site visits or on other occasions when he is gathering information. The purpose here is to give the parties an opportunity to verify that the principle of due process is being repeated by the expert.

Parties must always be allowed an opportunity to make representations to an expert, and these may include "dires", i.e. written representations, which an expert must address in his report. It would, however, be going too far to say that there can or will be a real "question and answer" session during which the parties can assess, for example, the value of the line of enquiry being followed by the expert.

Instead, the parties will have to wait until the expert has rendered his report, upon which they will be free to comment at the hearing at which submissions can be made upon its contents. Experts are occasionally summoned by the court to attend a hearing in order to answer questions from the court. And there may be some opportunity for the parties to put questions, but this can hardly be said to correspond to an opportunity to "examine" the expert as a common law practitioner would understand the term.

Thus, while the court may not be bound by an expert's opinion, the nature of the process is such that the expert is heavily relied upon by the court for assistance on technical issues, and it may be difficult for a party to persuade the court that the expert is wrong.

In conclusion, it is possible to characterise the "expertise" procedure as a form of "mini-trial", in which the expert assumes the role of the judge, and it is the parties' task to persuade the expert of their respective positions, given the likelihood that the court will rely upon the Expert's own findings when drawing up their judgement. [Page79:]

Experts in english procedure

It is fair to say that, traditionally, the role of the expert in English procedure was diametrically opposed to that across the Channel. The English Courts have had power to appoint their own experts for centuries, but have only rarely exercised it. Instead, the expert takes part in civil procedure as an expert-witness chosen by a party to give evidence, including the rendering of an opinion, on technical or otherwise complex matters of relevance to the party's case.

There are no official lists from which experts are chosen. Instead, an expert is expected to be competent to express a view on the issue in question. The expert's competence is likely to be tested by cross-examination, but it is only when drawing up its judgement that the Court will actually decide if the witness can be considered to have the necessary expertise.

In practice, an expert appointed by a party will assist the party primarily like any other professional advisor. If, however, the expert is also to assist as a witness in proceedings, then any written report he issued for the purposes of those proceedings must be an impartial product - in other words, the expert must not act as a party advocate.

The common law system replies upon cross-examination to verify whether the expert has acted impartially. Cross-examination has long been considered vital to expose errors and/or bias. Lengthy, probing cross-examination is generally considered to be particularly justified where there are expert witnesses, given the greater likelihood of an expert-witness misleading the Court than a witness of fact. And it should be appreciated that there is a long-standing English view that any failure to cross-examine a witness on part of his evidence may be treated by the Court as acceptance by the party in question of such evidence.

The role and use of expert witnesses in English proceedings have been substantially updated by the new Civil Procedure Rules and Commercial Court Guide brought out in recent years. The cost and delay resulting from the use of numerous experts had been a concern for some time. One of the steps taken to deal with this problem has been the introduction of the concept of a "single joint expert", which has been acknowledged as having been inspired by the French procedures approach. And the special status of such an expert has been recognised in a recent case¹ where the Court held that cross-examination of such an expert must be carried out with restraint. [Page80:]

However, even though there are signs that the traditional dichotomy between the French and English approach is being eroded, there is no fundamental change as yet, particularly as regards the vital role of cross-examination as a means of testing expert evidence.

Experts in arbitration

The contrasting approaches summarised above reflect rules and practice as they have been developed within distinct legal traditions by local legislators and practitioners, and which will be applied regardless of the origin of parties to the State court proceedings in question.

No such constraints apply, however, when it comes to international arbitration proceedings in England or

France, whether they are subject to a particular set of arbitration rules or otherwise. And this broad degree of freedom is to be found generally in jurisdictions having the benefit of modern arbitration legislation, and where modern arbitration rules are applied.

What arbitration laws say

In modern arbitration legislation, the rules and practice surrounding expert evidence are generally left to be fixed by the arbitrators and/or the parties. This may be by express provision, as is the case under English law², or impliedly, as under French law³.

Thus, the power of the arbitrators and/or parties are similar under French and English law, and the legislation differs mainly insofar as it reflects the English legislator's concern to provide the parties and arbitrators with a detailed checklist as to procedural and evidential matters to be decided, including the question of expert evidence and how the procedure applies to the taking of such evidence.

What arbitration rules say

Comparison of frequently used sets of rules governing international arbitration procedure leads one to the conclusion that while the provisions in relation to procedural and evidentiary matters in general, including expert evidence, are set down in greater detail than in arbitration legislation, there is still a very broad degree of discretion for the parties and arbitrators to organise such matters as they wish. This includes the possibility of having both expert witnesses and tribunal-appointed experts. [Page81:]

Thus, for example, the ICC Arbitration Rules provide at Article 20 for both types of expert, although they only provide expressly for interrogation of tribunal experts by the parties⁴. This is certainly not intended to be taken as a prohibition on the questioning of expert witnesses by the parties.

Two observations require to be made here: firstly, it is only in the latest (i.e. 1998) edition of the ICC Rules that specific reference is made for the first time to expert witnesses, i.e. "experts appointed by the parties" ⁵. This reference to a common law concept is further evidence of a conscious move to render the ICC Rules, which were originally strongly influenced by civil law rules and practices, truly international.

Secondly, the practice in relation to expert evidence in ICC cases has for many years included recourse to both expert witnesses and tribunal-appointed experts. The ICC Rules have always sought to be, and remain, a broad framework within which the arbitrators and parties have flexibility to decide on the type of expertise they wish.

Strictly speaking, therefore, as regards expert evidence and other evidentiary and procedural matters, the ICC "Rules" are in many instances more a set of principles than detailed rules governing procedure.

Like the ICC Rules, the LCIA Rules also demonstrate a desire to provide a truly international framework for arbitration proceedings. It is submitted, however, that the detailed provisions relating, inter alia, to expert evidence at Articles 20 and 21 of the LCIA Rules seem, like the English Arbitration Act 1996, to betray a common law drafting concern to cover all major concerns in relation to the taking of evidence, and can be taken as checklists for the options available to the arbitrators and parties.

A similar concern for detail is to be found in the WIPO Rules at Articles 54 and

55. Once again the arbitrators and parties are effectively provided with guidelines and options for consideration when organising the taking of evidence, whether from expert witnesses or tribunal-appointed experts.

However, not all recent sets of rules regulate in as much detail the issue of expert evidence, and the failure of certain sets of rules to clarify whether there is a role for party experts/expert witnesses as well as for tribunal-appointed witnesses (see for example the CIETAC Rules, the UNCITRAL Rules and the[Page82:] Rules of the European Court of Arbitration) means that as a matter of prudence the arbitrators (preferably acting in conjunction with the parties) should themselves clarify their position in the event that such evidence is proposed, as well as fixing the procedure that will apply.

If any general conclusions are to be drawn from a comparison of arbitration rules on the question of expert evidence, it is that they avoid regulating in great detail what the oral stage of the process of taking evidence may involve, and in particular whether and, if so, at what stage, a written report or statement of an expert-witness is to be submitted prior to the hearing.

These questions are liable to have a bearing on the question of whether the arbitral proceeding satisfies the requirement of due process, and must be borne in mind by the arbitrators, in particular when organising the proceedings. And if parties or their counsel come from jurisdictions as different as the English and French on the question of expert evidence, and possibly also on other major questions concerning witness and documentary evidence, then it is helpful if arbitrators can draw on rules or guidelines that will help them to address the potentially significant differences in expectations as to expert evidence and other procedural matters that may separate the parties.

Some assistance is provided by the UNCITRAL Notes on Organising Arbitral Proceedings 1996. Thus sections 69 to 73 address in detail the steps to be taken in organising evidence from tribunal-appointed experts in particular. As the title of the UNCITRAL initiative indicates, the notes focus upon practical concerns and are not intended to deal with issues such as the type and scope of questions that may be put during the interrogation of experts, or the weight to be attached by the arbitrators to the evidence that is presented.

Perhaps the most helpful initiative in recent years has been the IBA Rules on the Taking of Evidence in International Commercial Arbitrations published by the International Bar Association in 1999. As the Preamble to the Rules states, they are intended to supplement other rules to be applied in the proceedings and can be adapted to the circumstances of any particular proceeding. However, the underlying principle that those using the Rules are invited to follow is that

"the taking of evidence shall be conducted on the principle that each Party shall be entitled to know, reasonably in advance of any evidentiary hearing, the evidence on which the other Parties rely".[Page83:]

The Rules provide for both party-appointed experts (Article 5) and tribunal-appointed experts (Article 6). Detailed provisions effectively summarise the parties' expectations in relation to experts in common law and civil law systems respectively. The provisions in Articles 5 and 6 as to the requirements and procedures to be applied are clearly aimed at allowing parties from a legal system that may not recognise or use one of the two types of experts identified to have a reasonably clear idea of what to expect if the IBA Rule in question is adopted without substantial modification. Indeed, as the Preamble states, the Rules are "intended to govern … the taking of evidence in international commercial arbitration, particularly those between Parties from different legal traditions".

For both types of expert, the aim, in accordance with the principle enunciated in the Preamble as set out above, is to ensure that the parties have sufficient time to study an expert's report in order to prepare questions for the evidentiary hearing.

The Rules also set out in detail who may question whom, and cover the possibility of a tribunal-appointed expert being questioned not only by the parties but even by a party-appointed expert.

Given that the Rules seek to avoid surprises in direct evidence from witnesses of fact and expert witnesses by their emphasis on the production of written statements/reports setting out the evidence in advance of the hearing, it follows that, during the evidentiary hearing, the proportion of time liable to be devoted to cross-examination may be much higher in cases where the IBA Rules are applied.

To what extent, therefore, do the Rules seek to regulate cross-examination of witnesses generally, and experts in particular? The Rules deal with this question in some detail in Article 8, which focuses on the "evidentiary hearing".

Strictly speaking, however, many of the proposals they put forward are not "rules", but simply guidelines for the arbitrators to apply at their discretion. Thus, for example, "The Arbitral tribunal may limit or exclude any question to, answer by or appearance of a witness…if it considers such question, answer or appearance to be irrelevant, immaterial, burdensome, duplicative…"

(Article 8.1). [Page84:]

However, even if the term "rules" is inappropriate, the content of Article 8.1 arguably goes as far as such a document can in seeking to help arbitrators settle the issue of which questions may be asked. And in fact, when it comes to deciding on the rules to apply to cross-examination, it should be noted that English civil procedure does not lay down a more rigid series of prescriptions to be followed!

The remaining provisions of Article 8 include guidelines as to how the questioning of witnesses is to be organised. It is noteworthy, however, that the IBA Rules nowhere seek to provide separate rules for oral evidence from experts as opposed to witnesses of fact.

Presumably no need was seen for any separate treatment, even for party experts/ expert witnesses who in some cases move from arbitration to arbitration, spending much more of their time advising in their expert-witness role than practising their profession, and no doubt able to offer training courses themselves on how to act as an expert and, in particular, deal with cross-examination!

Conclusion

Arbitration rules and practice generally recognise the common lawyers' concern to have an opportunity to interrogate party - or tribunal-appointed experts. However, party-appointed experts in particular are often well versed in the art of dealing with cross-examination, with the consequence that proper examination of such witnesses can be very time-consuming.

This in turn is incompatible with recent moves to speed up the arbitral process, and with limitations by arbitrators on the time available for the questioning of witnesses generally.

In fact, in practice, counsel will generally have to perform a balancing act - he or she will need to gauge the appropriate line of questioning to follow in view of the experience and expectation of the arbitrator, in other words according to the extent to which the arbitrator is likely to understand the cross-examination strategy being followed. [Page85:]

Would the situation be helped by more detailed rules? We would suggest that, on this specific issue as on many others, the solution lies instead with recourse to experienced arbitrators who are aware of the expectations of parties from different legal cultures, particularly when it comes to the question of how far counsel may go with his or her questions.

The oral evidence stage can only be enhanced by the use of arbitrators who are able to organize and control the hearing in a way that the parties are left with the feeling that principle of due process has been respected. [Page86:]