Though the arbitral tribunal is generally selected based on their experience or expertise in a field relevant to the subject matter of the dispute, oftentimes the arbitral tribunal may not be fully equipped to assess all the facets of the issue. This is especially true in disputes involving complex issues or technical factors.
In such instances, expert witnesses are appointed by either parties to the dispute or by the arbitral tribunal. Expert witnesses are individuals with specialized training and expertise in particular issues relevant to the dispute. Their expert opinion provides assistance the arbitral tribunal during their decision making process. In international construction arbitrations for example, one or several expert witnesses may be appointed to give testimony on topics such as delay, quantum, geotechnics, defects or forensic accounting.
Although the expert opinion has persuasive value, the decision making power ultimately rests with the arbitral tribunal. The expert opinion is simply a means of evidence which is not intended to favor any single party and is expected to be based on factual evidence and technical expertise. Even if the expert witness has been appointed by the parties, they are expected to perform an independent assessment of the case and their ultimate duty is towards the arbitral tribunal. The more objective and independent the expert appears, the more credible she or he is and the more weight their expert opinion would have.
If it is felt that expert witnesses would be required in an arbitration, it may be wise to identify and appoint an expert as soon as possible. This would allow the us to identify and understand the key technical issues in the dispute, assess the client’s chances of success and plead the client’s case from the start in the knowledge that the expert’s evidence will be fully supportive.