The International Chamber of Commerce, in its ongoing effort to make available to the international business community a wide range of dispute resolution services, and after having issued the ICC ADR Rules in force as from 1 July 2001, has now issued new, revised Rules for Expertise (the 'Rules'). They are effective as of 1 January 2003 and replace the former Rules for Expertise, which were in force from 1 January 1993. The Rules, which are reproduced hereafter, are administered by the International Centre for Expertise (the 'Centre'), a service center of ICC.

Pursuant to the Rules, the Centre offers three distinct services: proposal of experts; appointment of experts; and administration of expertise proceedings. In fact, there are many situations in which a person or parties may require the services of an expert in a particular field. The three distinct services provided by the Centre under the Rules are designed to accommodate these various needs.

Proposal of experts

Any person or entity may unilaterally file a Request for Proposal asking the Centre to provide it with the name of an expert in a particular field of activity. The Request for Proposal may also indicate any desired qualifications of the expert, such as educational background, past experience, or language ability. The rules governing the proposal of experts are set out independently in Section II of the Rules.

The Centre's role is limited to finding the appropriate expert and providing the requesting person with the expert's name and contact information. The requesting person has no obligation to make use of that expert's services. Furthermore, pursuant to Article 2(3) of the Rules, the Centre will not notify any other person of the Request for Proposal unless the requesting person expressly asks the Centre to do so. Indeed, with respect to proposals, the Centre plays no role in any relationship between the person filing the request and any other person, but simply provides the name of an expert to anyone who requests it. It is up to the requesting person to notify any other persons if it desires or is required to do so.

There are many reasons why a person may wish to obtain the proposal of an expert from the Centre. A company may wish to consult an expert in connection with its business activities, independent of any dispute or potential dispute. A party to an [Page12:] arbitration or to proceedings in national courts may seek an expert witness. An arbitral tribunal may wish to appoint an expert in connection with ongoing arbitration proceedings.

Prior to the Centre's proposal, each expert is required to sign a statement of independence with respect to the person requesting the proposal. In any event, it is entirely up to the requesting person whether or not to accept the expert proposed.

The Centre's fee for proposing an expert is US$ 2,500 per expert proposed; however, pursuant to Article 1 of Appendix II of the Rules, no fee is charged for the proposal of an expert made to an arbitral tribunal acting pursuant to the ICC Rules of Arbitration.

Appointment of experts

Any party or parties may request the Centre to appoint an expert. This will typically be required in situations where the parties, in their contract, have agreed to the appointment of an expert and have chosen the Centre as the appointing authority. This may occur, for example, where the parties have provided for ad hoc expertise proceedings to assist them in resolving a dispute. In addition, the Centre may respond to a request for the appointment of an expert whenever it is satisfied that there is a sufficient basis for such appointment. The rules governing the appointment of experts are set out independently in Section III of the Rules.

The party or parties seeking an appointment begin the process by filing a Request for Appointment with the Centre. Pursuant to Article 5(4) of the Rules, the Centre is required to inform all relevant parties of the filing of a Request for Appointment. This is because an appointment, as distinct from a proposal, is typically based upon an agreement of the parties. The Centre's role is limited to finding and appointing the appropriate expert. Subject to any other agreement by the parties, the appointment is binding upon them. The appointed expert must file a statement of independence and must be independent of the parties, unless they agree otherwise.

The Centre's fee for appointing an expert, pursuant to Article 2 of Appendix II of the Rules, is US$ 2,500 per expert appointed. It should be noted that arbitral tribunals seeking to appoint an expert should request the proposal and not the appointment of an expert, since it is the tribunal itself which must appoint the expert.

Administration of expertise proceedings

The Centre is available to administer expertise proceedings if the parties so wish. The process commences when a party or parties file a Request for Administration with the Centre. The rules governing the administration of expertise proceedings are set out independently in Section IV of the Rules.

Once a request has been filed, the Centre will promptly inform all relevant parties that this has occurred. Thereupon, the Centre will either confirm an expert agreed to by [Page13:] all of the parties or, failing such agreement, will appoint an expert. The expert then proceeds to establish the expert's mission in consultation with the parties. Should the parties disagree upon the contents of the mission, the matter will be decided by the expert. If that were not the case, a party could inappropriately block the proceedings by disagreeing on the contents of the expert's mission. If the parties agree upon the contents of the mission, the expert should normally comply with the wishes of the parties. If, however, the expert does not do so and if all of the parties are dissatisfied with the contents of the mission, they may jointly require the replacement of the expert by the Centre pursuant to Article 11(3) of the Rules.

After establishing the expert's mission, the expert prepares a provisional timetable for the proceedings in consultation with the parties. Thereafter, the expert will conduct the expertise and make findings in a written expert's report in accordance with the mission. Pursuant to Article 13(1) of the Rules, the expert is empowered to render the expert's report even if a party fails to participate in the expertise proceedings, so long as that party has been given the opportunity to participate. The expert's report is submitted to the Centre in draft form for approval. The Centre may require modifications only as to the form of the expert's report. The expert's report is not binding upon the parties, unless they agree otherwise. If the parties wish to make the expert's report binding, they should make sure that their agreement to that effect will be enforceable under applicable law. Whether binding or not, the expert's report is admissible in any judicial or arbitral proceedings involving the same parties, unless the parties otherwise agree. The Centre will declare the proceedings closed after submitting the final, signed expert's report to the parties.

Thus, administered expertise proceedings can assist parties in better understanding the technical issues in dispute, can assist them in settling their dispute or, if so agreed by the parties and permitted by applicable law, can provide a binding resolution of the specific dispute.

The costs for the administration of expertise proceedings comprise the following four elements: a fee of US$ 2,500, payable on the filing of the request; administrative expenses of the Centre not to exceed 15% of the total expert's fees; the fees of the expert based on a daily rate for time reasonably spent; and the amount of the expert's reasonable expenses, as fixed by the Centre.

Comparison of the Rules for Expertise and the ADR Rules

In deciding which dispute resolution service is most appropriate for their specific needs, users may inquire as to the differences between the Rules for Expertise and the ICC ADR Rules. In that regard, the following differences can be noted. The proposal of experts and the appointment of experts may be obtained only under the Rules for Expertise. Those services are simply not available under the ADR Rules. Classic mediation and a range of other techniques where the neutral typically makes no report or findings are available under the ADR Rules. They are not available in administered expertise proceedings under the Rules for Expertise, which require the filing of an expert's report. [Page14:]

There are, however, some similarities between a neutral evaluation under the ADR Rules and administered expertise proceedings under the Rules for Expertise. In both cases, the neutral or expert provides findings to the parties. However, there are also important differences between the two. In neutral evaluation under the ADR Rules, the neutral's findings are confidential, whereas under the Rules for Expertise the expert's report may be produced in judicial or arbitral proceedings. In addition, the expert's report is reviewed by the Centre as to form, while the neutral evaluation under the ADR Rules is never reviewed by ICC. Indeed, a key reason why the Centre's formal review is beneficial in expertise proceedings is that the expert's report is admissible, in principle, in other proceedings.

Finally, while any party can terminate the proceedings under the ADR Rules at any time after the first discussion with the neutral, expertise proceedings cannot be terminated unilaterally by one party prior to the rendering of the expert's report. This means that any party can terminate a neutral evaluation under the ADR Rules before the neutral provides his or her evaluation, whereas in expertise proceedings under the Rules for Expertise the expert will render the expert's report unless all parties agree to terminate the proceedings prior thereto.

In short, neutral evaluation under the ADR Rules is primarily geared to the search for an amicable settlement without impinging upon any further proceedings. Administered expertise proceedings are used to obtain an expert's report which may lead to settlement but can also be used as evidence in litigation if no settlement occurs.

Conclusion

The new, revised Rules for Expertise are designed to be relatively short and concise. They provide the general framework for each of the Centre's three services while allowing for flexibility and avoiding excessive regulation. As has been seen, each of the three distinct services is dealt with in a separate and independent section of the Rules. Thus, for example, a person seeking the proposal of an expert need not be concerned with Sections III and IV of the Rules. In reality, the Rules provide for three separate sets of rules within a single document, although there are circumstances in which more than one of the distinct services can apply. For example, after an expert has been appointed by the Centre pursuant to Section III of the Rules, the parties could still agree to have expertise proceedings administered by the Centre pursuant to Section IV. In addition, if the Centre is required to appoint an expert for an administered expertise proceeding under Section IV of the Rules, it will utilize the appointment mechanism set out in Section III of the Rules.

It has been the goal of ICC to provide the international business community with a range of dispute resolution services. ICC is pleased to issue the new, revised Rules for Expertise as an addition to ICC's dispute resolution 'toolbox' from which users may choose the tool best suited to their needs, be it arbitration1, ADR2, expertise3 or DOCDEX4.

1
ICC Rules of Arbitration, ICC Publication No. 808, also available at www.iccarbitration.org

2
ICC ADR Rules, ICC Publication No. 809, also available at www.iccadr.org

3
ICC Rules for Expertise, ICC Publication No. 649, also available at www.iccexpertise.org

4
ICC DOCDEX Rules, ICC Publication No. 811, also available at www.iccdocdex.org