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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
The subject of oral testimony by expert witnesses is one which is familiar to experienced disputes practitioners and laymen alike. Experienced arbitration counsel know well the potential importance of live testimony by an expert at a witness hearing, particularly in cases where the in-person response to questions is seized as an opportunity to simplify complex factual, technical and even legal matters in dispute. Non-lawyers and non-technical persons also have notional ideas of how crucial live testimony by experts can be, especially against the backdrop of the dramatization of the cross-examination of experts through the medium of Hollywood cinema. What these two differing, but overlapping perspectives clearly have in common is that the appearance of an expert in live proceedings can conceivably decide a dispute, and that the means of approaching such an encounter have continued to evolve over time.
The present brief tour d'horizon is couched in terms of "benefiting" from oral testimony of expert witnesses, and is divided into the following interrelated sections:
General concepts applicable to expert oral testimony in international arbitration
Orality of expert evidence and particular subject matter
Selection of expert in arbitration for purposes of oral examination
"Qualification" of the expert for purposes of oral examination[Page87:]
Orality of expert testimony and the prior sequence of proceedings
Possible options for oral examination of experts generally
Goals of examination of expert witnesses from the perspective of the offering party
Goals of examination of expert witnesses from the perspective of the opposing party
Goals of examination of expert witnesses from the perspective of the arbitral tribunal
Resulting means of benefiting from oral examination of expert witnesses
As a general conceptual overview, it is useful to divide the initial discussion of expert oral testimony in international arbitration into two broad categories: namely, (i) categories of experts per se and (ii) areas of oral (and written) testimony by experts.
This approach in the context of international arbitration could, substantially, also be applied to a discussion of use of experts in civil (and to a certain extent even criminal) litigation in the State courts. Indeed it is fair to say that many of the traditional, and especially emerging, approaches to the use of experts in international commercial and construction arbitration, especially in the common law jurisdictions, have their origins and inspiration in the ways in which experts are introduced into litigation proceedings. Similarly, in civil law jurisdictions, approaches to the use of experts in arbitration have, particularly in the past, likewise been influenced by the concept of experts in State court actions.
Three broad categories of expert might be identified. These are (i) the party-appointed expert, (ii) the tribunal-appointed expert designated with the consensus of parties, and (iii) the tribunal-appointed expert designated without the consensus of the parties.
In the case of party-appointed experts, modern-day, commonly used institutional and ad hoc arbitration regimes invariably provide for the introduction by one or more parties of expert evidence. In terms of the orality of such evidence, it is interesting to note certain commonly encountered differences in approach[Page88:] between common law-and civil law-inspired arbitration practitioners. For example, civil law-inspired statements of claim initiating an arbitration will often include "offers of evidence" with or without the name of a particular individual to serve as expert, whereas common law - inspired requests for arbitration more often stop short of making such offers on the theory that they are premature and that their absence should not be equated with an inability to substantiate the case.
In the former approach, where an expert or even a specific individual is introduced already in the first instance, presumably counsel will also have done the necessary due diligence before making the "offer" of the expert. With respect to the orality of the evidence, such inquiry should include
(a) whether the expert evidence "lends itself " to oral examination and (b) whether the expert offered is suited to defend his expert opinion effectively under cross-examination.
Ultimately, the differences in approach with regard to the timing and specificity of offering expert evidence are increasingly becoming subject to convergence. Thus the stereotypical contrasts of earlier years are often breaking down. Alternatively, interestingly enough, common law practitioners may also partially adopt civil law approaches and civil law practitioners common law approaches, depending upon the needs of their particular case.
In the case of the tribunal-appointed expert designated with or without the consensus of the parties, the susceptibility of the taking of the expert evidence by oral means may be less of a concern, particularly where the tribunal selects the expert. In such cases, the tribunal would be well advised to preserve the ability to test the evidence of the expert by oral examination through the parties' counsel. At the same time, the tribunal may be less concerned with the expert's oral testimony than with his prior written report. In the case of a tribunal-appointed expert selected with the consensus and also the input or agreement of the parties, the concern may be greater.
Apart from the foregoing categories of experts per se, a general overview of oral expert evidence includes a sketch of possible areas of oral (and written) testimony by experts. It is fair to say that as time goes on and technology and commerce become more complex and interlinked, the areas of possible expert testimony likewise expand. Among the broad categories of possible expert testimony are construction, engineering, scientific, medical, intellectual[Page89:] property, econometric, accounting, environmental, psychological and legal. Such a list could be expanded at will, but in the context of oral expert testimony certain central points are worth making.
First, while some areas of expert testimony might appear to lend themselves more to oral examination than others, a competent expert (and competent counsel) can make even the most abstruse area of testimony come to life upon examination. By the same token, even the most straightforward area of expert testimony can become hopelessly tangled and unintelligible at the stage of oral testimony.
Second, inevitably, the nature of the contract is predetermined before the question arises of whether an expert is appropriate, and not the other way around. Thus the issue from counsel's and even the tribunal's point of view will normally be, does the particular dispute lend itself to examination at trial, or rather is it better dealt with, and even conclusively dealt with, on paper?
Third, in the case of an expert on issues of law, the problem of orality may be more complex even while the nature of the question would appear to be more accessible, especially to fellow lawyers. Particularly in the civil law tradition, the view is often expressed that an "expert" on law is either not required or a misnomer or both: the arbitral tribunal is deemed to be capable of ascertaining or taking notice of the law on its own. If the tribunal requires further assistance, it will resort to its own devices, but not be interested in an "expertise" on an issue under the applicable law.
In the common law tradition, on the other hand, there is nothing per se untoward about offering a professor or practitioner as an expert of law, and such testimony can be considered as testimony of fact to be assessed by the tribunal along with any and all other evidence on facts. In this context, it may not be surprising that many common law - inspired tribunals have a greater openness to oral examination of experts of law than do civil law-motivated tribunals.
A further refinement might be made by approaching oral testimony of experts not solely by category of subject matter, but by (i) susceptibility to oral examination and explanation and (ii) dependence of the expert testimony on written documentation and data. [Page90:]
In the case of the first perspective, susceptibility to oral examination and explanation, one might posit four broad categories of experts who would be subject to oral examination: (a) experts who calculate, (b) experts who test, measure or reconstruct, (c) experts who challenge how someone else did something, and (d) experts who opine on the state of the law. At first glance, it might be supposed that experts who challenge how someone else did something would be most usefully subject to oral examination, but of course this depends on the nature and category of activity of the person whom the expert is second-guessing (or confirming).
In the case of experts who calculate, the calculations on their own may not benefit greatly from oral examination, but of course the overall demeanour and credibility of the expert confirming or denying the calculations may be better scrutinized if subject to live testimony.
The same observation would surely apply to any other category of expert examination, including opinions of law. There, the benefit of the oral examination might be seen less in the added value of demonstrating the way the opinion was reached than in the opportunity to size up the witness' overall likelihood to be telling the truth and expressing a true expert view.
In the case of the second perspective, the dependence of expert testimony on written documentation and data, a high dependence on the written word as the basis for the expert conclusions need not necessarily mean that oral examination on those same conclusions would be useless, impracticable or both.
Again, in most cases other than eyewitness disputes revolving around events (such as accidents) or representations (such as promises), the dispute will depend upon certain writings, and perhaps on only a very few. In those disputes, such as many construction matters, the voluminous drawings, change orders, variations, schedule diagrams and the like cannot be reduced to less than several hundred despite best efforts. There, it may be precisely the oral synthesis of the expert which assists the tribunal to make sense of the written collage.
Various kinds of written documentation or data may impact on the later use of oral expert testimony. [Page91:]
First, correspondence and contemporaneous records will exist in most cases, especially those involving disputes between sophisticated parties and particularly in the construction and accounting fields.
Second, also in the construction field, site visits or other physical inspection may be called for, and may result in a kind of oral examination of experts which is significantly influenced by the presence of demonstrable evidence not in the hearing room, but on site for all to see. Such site visits can conceivably take place with or without the participation of the parties, or even with or without the participation of the tribunal. However, in the case of a lack of participation, normally no real oral examination can take place while preserving the requirements of due process.
Third, written documentation might also consist of photos, videos and other visual inspection, which will call for or lend itself to oral examination of expert witnesses.
Fourth, such documentation might take the form of empirical studies, analyses and calculations or of maps, diagrams and drawings, as to which an expert opinion may be best expressed by means of oral testimony.
Fifth, in many cases, expert testimony is sought to be supported by machine-made or hand-made representations, on which the expert, particularly under direct examination, bases his oral evidence. Depending upon the subject matter and the backgrounds of the members of the arbitral tribunal, such reliance on "demonstrable evidence" may be considered a true benefit, or may be perceived as an unnecessary and exaggerated dramatization of the issues.
Generally, the question of whether to select an expert and whom to select for purposes of oral examination might be seen in two broad senses.
In those cases where the expert's oral testimony is to be preceded by the expert's written expert report or affidavit, the expert will normally set out the justification for holding himself out as such in writing. Any scrutiny of whether such person truly is an expert, and an expert in a relevant field, will normally best take place in subsequent oral examination, if any. [Page92:]
If it is unclear or unlikely that such oral examination will in fact take place, then the expert and the party putting him forward must use the written expert report as the one and possibly only opportunity to justify his standing as expert. In this regard, the cultural, legal and other background of the party and of the would-be expert may influence how such opportunity is used.
Among the many differences which may arise here, a classical one is the so-called "hired gun," that is, the expert who may be perceived as being prepared to advocate an opinion dictated to him as long as he is remunerated adequately for such exercise.
In reality, the alacrity with which many civil law observers criticize Anglo-American use of experts as indulging in battles of hired guns is often misplaced and unjustified. A well-prepared expert in the one culture is not necessarily any less independent than in the other culture. Both are remunerated for their services. Both have reputations to protect. Both must be prepared to withstand cross-examination. The institutionalization of expert testimony in the common law systems results in a higher frequency of abuse of the system as a result of the higher number of would-be experts generally. At the same time, it also results in a higher degree of professionalism in certain respects than is encountered with certain experts in the civil law realm.
Second, the question of whether to select an expert and whom to select for purposes of oral examination might be seen as a function of the particular arbitration. In this regard, the degree of orality of the arbitration is of course central.
Some arbitrations, particularly in the domestic English realm, are "documentsonly" proceedings with essentially no oral testimony and even little or no oral advocacy by counsel. The case can be made that many arbitrations could just as well be conducted with a just result on the basis of documents, and with far less cost and time. At the same time, the parties will often disagree as to whether the arbitration can be conducted in this manner, based in part on differing views of the benefits of oral testimony to their respective case. Also, such views may not always be formed at an early stage.
Apart from the somewhat extreme example of documents-only arbitrations, which are in principle rare in large commercial disputes, the orality of expert testimony must also be seen in the context of the qualifications and knowledge[Page93:] of the tribunal members. Depending upon their respective technical and/or legal knowledge and what knowledge is called for to decide the dispute, a party may favour or disfavour oral examination of his experts or opposing experts.
A well-organized party who already has his experts in place at an early stage of the arbitration may in fact allow his selection of a party-designated arbitrator and of the chairman be influenced by the selection he has already made of an expert. If he has determined that an expert is crucial and that the person chosen would best be given a stage for extensive questioning by the tribunal, he may also wish to ensure that the members of the tribunal are persons who would be most suited to conducting such questioning.
In reverse order, if the tribunal has already been selected and only later is a determination made that oral expert testimony would advance the cause, the selection of a particular individual as expert may be guided by the degree of sophistication, or lack thereof, of the tribunal members already in office as to the issue about which the expert would opine.
Yet a further variation on the foregoing which may also influence the selection of the expert-witness is the extent to which an advance definition of the expert issues has been achieved, either by contractually stipulated mechanism or by agreement among the parties after commencement of the arbitration or by dictate of the tribunal.
In the presence of such a list, the parties may be able to make a more focused decision as to which person is appropriate as expert, and whether his oral testimony would be productive in adjudicating specific issues. In the absence of such a list, the parties may be less able to make a focused decision, may feel obliged to have a more widely ranging expert opinion, and may be less comfortable determining whether that opinion would be aided or undermined by scrutiny in the form of oral examination.
"Qualification" of expert for purposes of oral examination
The use of oral expert testimony in international arbitration is partly a function of whether the person put forward as an expert actually "qualifies" as one. Four observations may be made in this regard. [Page94:]
First, the qualification of the would-be expert as an "expert" may normally be based on one or more of (i) knowledge, (ii) skill, (iii) experience, and (iv) training and education.
Normally, the ability of the expert and of the party putting him forward to ensure a successful qualification as expert in the estimation of the tribunal should not depend critically on whether the person is subject to oral examination. On the other hand, as stated above, depending upon the circumstances the opportunity of oral examination and inquiry may be conducive to solidifying the conclusion that the expert is qualified based on one or more of the foregoing bases.
The determination of whether oral testimony would have added value in this regard may also be a function of which person has been put forward by the opposing party as a counterpoised expert, and whether oral examination would be likely to place that counterpoised expert in a more or a less favourable light.
Second, the knowledge or skill being relied upon to qualify as expert need not be formal or academic. This recognition by itself may also influence whether oral examination is perceived to be critical to the qualification as an expert.
At least two corollaries follow from this observation. On the one hand, the absence of experience need not be disqualifying and on the other hand, stellar qualifications must still match the subject matter of the expert testimony.
Third, the "qualification" as an expert is ultimately within the discretion of the arbitral tribunal. The exercise of that discretion is linked to the overall discretion of the tribunal to weigh and assess the evidence. In some cases, the exercise of that discretion may be reviewable on one or more of the grounds available for seeking annulment of the award at the seat of arbitration, but bearing in mind how stringent the standards applied to such petitions normally are.
Fourth, when considering the desirability of oral testimony by the expert as a part of the decision of whom to select as expert, it should be borne in mind that the ultimate contribution of the expert may be more one of "synthesis" and "assimilation" than of providing a reliable opinion. [Page95:]
While the true role of the expert is to provide an expert opinion, it may not be until late in the arbitration that it becomes apparent that the greatest service rendered by the expert has been one of organizing, digesting and depicting the main issues in order to render his opinion, while his opinion per se is less useful. This synthesis and assimilation function will most likely have taken place through submission of the written expert report. However, as mentioned above it is entirely possible that oral testimony can also play such a role, even in the case of a voluminous prior documentary record.
The extent to which oral expert testimony may be useful or desirable in the arbitration proceedings may also depend on what has already transpired in the arbitration, before the decision has been made.
In the context of U.S.-style and U.S.-venued arbitration, depositions may be foreseen or may already have taken place as part of the taking of evidence. Depending upon the procedure agreed or otherwise dictated, such depositions would normally occur before the submission of witness statements, including expert reports.
In such a case, the depositions may play a critical role in determining the extent of later oral examination of an expert who was subject to deposition. As a function of how well the expert acquitted himself under deposition, he may or may not be asked to put forward a written expert report. Also as a function of the deposition, the scope of any such report may be circumscribed or otherwise altered, and thus the scope of his later oral examination may be affected.
Such decisions would not be able to be made without the benefit of the depositions, and in this respect this oft-maligned evidentiary vehicle often actually plays a useful role in focusing and tailoring the later proceedings relating to experts.
Furthermore, written expert reports may be exchanged simultaneously or consecutively, in one round or two. This framework may likewise influence the content and scope of the written report, and thereby of any later oral examination[Page96:].
Whether or not expert reports are simultaneous or consecutive, their scope may also be defined, as mentioned above, by party agreement, terms of reference or a procedural order, thereby impacting on the usefulness and scope of any subsequent oral examination.
In some cases, the parties agree or the tribunal determines that the experts shall answer a questionnaire of remaining issues in advance of an oral hearing. In other cases, a list of "undisputed issues" and a list of "disputed issues" may be generated on the basis of the competing expert reports, thereby clarifying what the remaining points for discussion must be under oral examination from the tribunal's point of view.
Finally, an increasingly relevant aspect of determining whether and how to have expert testimony under oral examination is the existence of a prior or parallel expert determination on accounting, tax or price adjustment issues. In some cases, an expert determination will already have taken place and form a final and binding part of the scope of the expert's report in the arbitration. In other cases, the expert determination will not have taken place due to competing claims of competence of the expert determination and the expert in the arbitration.
In either such case, it may make sense for the expert in the arbitration to have a full opportunity to set forth his views before the tribunal, if also so as to enable it to determine whether it has jurisdiction over the matter at hand.
Having made a determination that oral examination of an expert is in principle desirable or tolerable, the examination itself may take one or more various forms.
First, as mentioned, often in arbitrations at least in the United States, there may be deposition of experts in advance of the hearing before the tribunal. In such a case, one issue at trial upon examination of the expert will be that of the consistency between the expert's written report, his deposition testimony and his testimony before the tribunal. [Page97:]
Second, the question of "direct examination" and "cross-examination" by counsel may arise. Even if the procedural directions in the arbitration indicate that the prior written expert report is in lieu of direct examination, there may be substantial "redirect" examination, and the expert may seek to make extensive statements even in response to the cross-examination by opposing counsel.
Third, there may be more or less inquisitorial examination of the expert-witness by the arbitral tribunal. There may be a mixture of examination by counsel and the tribunal. There may also be "witness conferencing" of experts simultaneously present in the hearing room and conducting effectively a dialogue on specific issues and questions in front of the parties and tribunal. Further possibilities include questioning of party-appointed experts by each other or by a tribunal-appointed expert. [Page98:]
In any and all such cases, the parties and their experts should enjoy as much clarity as possible before the hearing as to the expectations and possibilities for oral testimony from the standpoint of the tribunal. If such clarity is not achieved, even the most reputable and coherent expert-witness may become unhinged. Alternatively, his voice may otherwise go under, in the procedural chaos which may emerge when the parties do not agree on the format and ground rules for the witness examination.
Goals of oral examination of expert-witness from the perspective of the offering party
Among the objectives of the party offering the expert for examination, at least three principal areas come to mind.
First, the offering party has the desire, and the need, to qualify the expert-witness as an expert - most particularly in the eyes of the arbitral tribunal, but perhaps no less in the eyes of the opposing party and also the counterpoised expert, if any, of the opposing party.
Such qualification can be achieved in a number of different ways, and in some situations is brief, uncomplicated and perhaps all but unnecessary. In other cases, qualification is less clear or in any event requires a series of steps to be achieved before the witness is at least nominally considered to be an expert.
Of course, in contradistinction to the somewhat formalistic approach of "qualifying" an expert in civil litigation in the United States under the Federal Rules of Evidence, the qualification process in an international arbitration can be much more free-flowing and fluid, or indeed not take place at all. Alternatively, the effort to establish the witness as an "expert" may parallel some of the same steps in the rituals of the Federal Rules of Evidence, but the arbitral tribunal will see no need to formally acknowledge that the qualification has succeeded before proceeding with the examination of that witness.
Whatever method is employed, the "qualification" as expert will obviously rely in the first instance on one or more of the witness' training, experience, prior research or observations, etc.
Second, qualification of the person as an expert need not guarantee that such person is "the right person" to provide an expert opinion on the issue or issues which the offering party claims would benefit from, or depend on, an opinion from an expert.
In other words, even if that person is shown to have a particular expertise, the offering party would do well to make use of the oral examination of the witness to demonstrate that the subject of his or her testimony is directly linked to his expert experience or knowledge, and that such testimony is relevant and material to the issue in dispute. In those oral examinations where, increasingly, the prior written witness statement is deemed to be in lieu of direct examination, this goal will necessarily need to be achieved in the course of cross-examination, interrogation by the tribunal, re-direct examination and, if any, witness conferencing with the opposing expert.
Third, a witness who appears to be an expert and whose testimony appears to be material and relevant to an issue in dispute must still normally establish a sound and prevailing basis for the forming of such opinion.
Even the most esteemed expert whose expertise would appear to fall squarely into the area of dispute may come across as unhelpful to the task of the arbitral tribunal if, on oral examination, he is not able to demonstrate an appropriate basis for having reached his particular opinion. In this respect, depending upon the case and the nature of the expertise, there may be one or more tenable bases for the opinion, including, e.g., (i) facts or data personally perceived by the expert, (ii) hearsay which the tribunal decides nonetheless to admit, (iii) facts or data not personally perceived but reasonably relied upon, and (iv) facts or data communicated to the expert only at the hearing. [Page99:]
In the context of the goals of oral examination from the standpoint of the party offering the expert, there are a host of other issues which are relevant to the direct examination. These may include the acceptable and effective use of demonstrative aids or evidence as part of the qualification process, the characterization of the expert as an expert of law or rather as an expert of fact, and the issue of whether the expert may attend some or all of the witness hearing and oral argument not strictly related to his own testimony, and in particular before he has been examined. Depending upon the circumstances and the proclivities of the parties and the tribunal, these issues may be decided in quite different ways.
Goals of oral examination of expert-witness from the perspective of the opposing party
Among the objectives of the party opposing the expert for examination, the considerations are to a large extent the mirror-image of the three principal areas just mentioned.
Thus, first, the opposing party may seek to disqualify the witness ab initio as an expert. Such consideration may depend on whether the effort to do so is credible and achievable, and whether such person's testimony even if accepted as being expert is, in the view of the opposing party, germane to the case.
Not every attempt to disqualify an expert is worth undertaking, or even dispositive of the dispute. When such attempt to "disqualify," if made, should take place will depend upon the particular procedural modalities agreed upon or dictated by the tribunal. Where the expert has submitted a prior written report, it is possible that the opposing party will have submitted a competing expert report at the same time or subsequently which may set out to undermine the qualifications of the other expert. In international arbitration, this would appear to be infrequent, however, and in most situations the effort to disqualify is left to counsel and not made part of the task of the counterpoised expert. Thus the effort to disqualify, if undertaken, will instead be made by counsel upon cross-examination at the hearing.
Second, counsel for the opposing party may see fit to discredit the link between the subject of the testimony and the specific expertise. In such case, again usually on cross-examination, a good-faith effort might be made to establish to the arbitral tribunal that while the expert is technically qualified, his qualification has little or nothing to do with the opinion which he seeks to give and seeks to characterize as being expert[Page100:].
Third, the opposing party will frequently seek not so much to disqualify the expert or to challenge the link between his knowledge and his testimony, but rather to discredit the "basis" for the opinion which he offers.
The same general categories of possible basis for an expert opinion may be relevant here. Thus on cross-examination counsel may seek to establish that the facts or data on which the expert relied to form his opinion were actually not personally perceived by the expert, or that he relied on hearsay or other evidence which should not be admitted. Other possible means of discrediting on cross-examination may include that the facts and data were not only not personally perceived, but also not reasonably relied on because they were statistically non-representative, etc. In the case of facts or data communicated to the expert only at the hearing, the expert may be particularly susceptible to discrediting if he is unable to present a reasonable basis for assimilating such facts or data. On the other hand, the very fact that the basis was provided only at the hearing will often be factored in by the arbitral tribunal in assessing and weighing the testimony.
Other issues are relevant to the cross-examination of the expert or would-be expert. These include objectionable use of demonstrative aids and motions to exclude the presence of the expert before and/or after his specific witness testimony.
Also, particularly in arbitrations involving U.S. counsel and/or U.S. experts, there may be disputes as to whether the expert is impermissibly declining to answer a question or reveal the factual or documentary basis for forming his opinion on the grounds of attorney-client or attorney-work product privileges, or even somewhat analogous protections available in other legal systems.
Finally, particularly in the case of an expert opinion of law, cross-examination may revolve on the objection that the testimony is of little or no use in any event, since under the principle of jura novit curia the arbitral tribunal is deemed to know, and have its own means of verifying, the applicable law without extrinsic testimony.
Goals of examination of the expert-witness from the perspective of the arbitral tribunal
Ultimately, neither the expert-witness himself nor the party or counsel offering or opposing him can afford to lose sight of what the arbitral tribunal hopes to benefit from his oral examination. [Page101:]
This holds true irrespective of whether the tribunal takes a more inquisitorial and dirigistic approach, conducting the examination substantially on its own, or instead leaves the examination largely or wholly to the parties' counsel and passively follows the questioning. Particularly in the latter case, counsel and the expert must be all the more attentive to what the arbitral tribunal is likely to need and to want to know as a result of the expert testimony. This is especially the case if the arbitral tribunal offers few overt "cues" as to what parts of the competing expert testimonies most concern it. In this regard, a number of possible goals on the part of the arbitral tribunal may be identified.
First, as a matter of efficiency and evidentiary weighting, the arbitral tribunal will normally indeed wish to make conclusions as to whether the witness offered can be qualified as an expert.
Second, cross-examination and questioning by the arbitral tribunal itself can and should serve the goal of determining which questions really depend upon expert input and cannot be responsibly answered without it - as opposed to simply being "embellished" by the testimony of an expert as "icing on the cake."
Third, what is the relevant training and experience for a probative expert input on the subject in dispute? Questioning by the tribunal in this regard, including querying counsel on why they have put forward a particular expert, may serve to answer such a question.
Fourth, the arbitral tribunal may question whether the expert opinion being proffered actually needs to be communicated orally, or whether it is even susceptible of being communicated orally. Depending upon the complexity and nature of the underlying subject matter and the explication of the expert opinion, it could be that the prior written expert report is deemed to be sufficient, and even superior to any attempts to elaborate upon its content orally.
Fifth, the basis for the expert opinion reached should typically be a concern for the arbitral tribunal in the course of the oral examination. Does the witness possess the relevant expertise, does he possess the relevant and correct facts and data, and does he appear to have relied upon the same to reach his expert conclusion?
Sixth, in this regard oral examination may also be conducive to establishing whether any disagreement between competing experts is based on the same objective features and data, or rather on two different universes of information. [Page102:]
If such differences are shown or assumed to exist and are critical to the case, witness conferencing in which both experts are questioned about the underlying facts and data at the same time may assist in narrowing the differences of opinion.
Seventh, where two experts appear to have been working from substantially the same baseline and the disagreement between them persists into and during the oral examination, the questioning in person may serve to explore whether such disagreement is actually relevant to the adjudication of the dispute. Some disagreements may not bear upon the central issue. Others do, and the oral questioning may help to determine whether in fact the disagreement can be reconciled by the tribunal based on other considerations, including common sense, without having to "choose between" the two opinions.
Eighth, particularly in complex construction and infrastructure disputes, elaborate demonstrative aids (charts, timelines, photographs, plotplans, blueprints, etc.) may be relied upon in the course of the oral examination of an expert-witness. The expert and counsel must at all times ask themselves whether such aids are truly helpful, or instead are even harmful and counterproductive to the cause of communicating a particular opinion to the arbitral tribunal. This inquiry will largely be a function of the nature of the opinion together with the backgrounds of the members of the tribunal.
Finally, the issue of privilege may surface. Attorney-client, attorney work-product and other privileges or legal impediments to participation in the taking of evidence may be of just as great importance to the tribunal as to the counsel invoking them - or they may be considered to be more in the nature of a sideshow. Clearly, the tribunal has an obligation to consider the legitimacy of the invocation of a privilege as part of its mandate to observe due process and equal treatment. In the context of oral examination of expert witnesses, the arbitral tribunal may have to decide, even spontaneously, whether to accept or to ignore the invocation of a privilege in midstream during oral examination. Counsel would be well advised to ensure that the tribunal has the complete factual and legal basis for understanding the arguments made about privilege, so that they can be properly assessed during and after the oral examination of the expert-witness. [Page103:]
In view of the foregoing, it is apparent that the contours and usefulness of an oral examination of expert witnesses in international arbitration will depend upon a number of factors. These will of course include the parties, counsel, arbitrators and experts involved. They will also include any applicable or perceived procedural and other confines relevant to the way in which the oral examination is conducted.
Since certain imponderables will always apply to an oral examination, it is all the more important to attempt to attach as much transparency as possible to the process, and at the earliest sensible stage. Initial procedural orders may seek to regulate the use of expert witnesses at trial in detail from the outset of the arbitration. Still, it is entirely possible that such regulations will need to be revisited as the character of the arbitration becomes clearer and more tangible in the succeeding weeks and months.
Whatever the timing, it is critical that well before going into the examination of the expert witnesses, all participants concerned have a concrete understanding of what the ground rules are, what the expectations on all sides should be, and what flexibility may still obtain and be taken advantage of in the oral examination. While this would speak in favour of addressing such issues at an early stage, it is also likely that any rules agreed upon at the beginning of the arbitration may need to be revisited or confirmed later on, as the witness hearing approaches.
If such due diligence and good housekeeping, so to speak, are observed on all sides and most particularly by a vigilant arbitral tribunal, it is likely that the oral examination of the expert witnesses may be useful, probative and instrumental to the assessing of the one or other critical point leading to either settlement or adjudication by award. It is also likely that differences in approach to the oral examination of expert witnesses - based in part on cultural, educational and philosophical divides - can be bridged to at least some extent to accommodate the competing needs of the participants in an international arbitration. [Page104:]