The expert’s report shall not be binding on the parties unless all of the parties expressly agree in writing that such findings shall be contractually binding upon them.
The Rules cover all aspects of the expert proceedings, from the selection of the expert, the location and language of the proceedings, the expert’s mission, the procedural timetable, the expert’s report and the fees and costs of the expert procedure.
Selection of the Expert
The parties may jointly nominate an expert for confirmation by the ICC International Centre for ADR (“the Centre”) or, in the absence of a joint nomination, the Centre shall appoint the expert. In confirming or appointing an expert, the Centre shall consider the prospective expert’s nationality, residence, training and experience, and the prospective expert’s availability and ability to conduct the expert proceedings in accordance with the ICC Rules for the Administration of Expert Proceedings.
Every expert must be and remain impartial and independent of the parties involved in the expert proceedings, unless otherwise agreed in writing by the parties. The Centre may replace the expert under certain conditions pursuant to Article 4 of the Rules.
Article 4 – Continued Impartiality and Independence of the Expert – Replacement of the Expert
- Every expert must be and remain impartial and independent of the parties involved in the expert proceedings, unless otherwise agreed in writing by such parties.
- An expert shall immediately disclose in writing to the Centre and to the parties any facts or circumstances of a similar nature to those referred to in Article 3(3) concerning the expert’s impartiality or independence which may arise during the expert proceedings.
- An expert confirmed or appointed by the Centre, who has died or resigned or is unable to carry out the expert’s functions, shall be replaced.
- An expert confirmed or appointed by the Centre shall be replaced upon acceptance by the Centre of a written request of all of the parties.
- If any party files a written objection with the Centre asserting that the expert does not have the necessary attributes, is not fulfilling the expert’s functions in accordance with the Rules or in a timely fashion, or is not independent or impartial, the Centre may replace the expert after having considered the observations of the expert and the other party or parties.
- When an expert is to be replaced, the Centre has discretion to decide whether or not to follow the original appointing process.
The Expert’s Mission and Report
The expert’s mission is set out by the expert in a written document after having consulted the parties and in accordance with the requirements of Article 6 of the Rules. Simultaneously, or soon thereafter, the expert shall also prepare a procedural timetable for the conduct of the expert proceedings after having consulted the parties. The Centre shall oversee the expert’s work in carrying out the expert’s mission within the contexts of the procedural timetable and pursuant to the Rules.
The expert shall then make findings in a written expert report within the time limits set by the expert’s mission after giving each party a reasonable opportunity to present its case. The expert’s report shall be submitted in draft form to the Centre before it is signed for scrutiny by the Centre. The Centre may lay down modifications as to the form of the report, without affecting the expert’s liberty of decision, may also draw the expert’s attention to points of substance.
No report shall be signed by the expert or communicated to the parties prior to the Centre’s approval. Following the scrutiny process and once finalized, the Centre shall notify the expert’s report to the parties and declare in writing that the administered expert proceedings have been terminated.
Unless otherwise agreed by all of the parties, the expert’s report shall give reasons for the findings made. The findings of the expert shall not be binding on the parties unless all of the parties expressly agree otherwise in writing. The expert’s report shall be admissible in any judicial or arbitral proceedings in which all of the parties thereto were parties to the administered expert proceedings in which such report was prepared, unless otherwise agreed by all of the parties.
Article 6 – The Expert’s Mission
- The expert and the parties shall make every effort to conduct the expert proceedings in an expeditious and cost-effective manner, having regard to the complexity and value of the findings to be made in the expert’s report.
- As soon as the expert has received the file from the Centre, the expert, after having consulted the parties, shall set out the expert’s mission in a written document. That document shall be consistent with the Rules and any agreement of all of the parties. It shall be communicated to the parties and to the Centre and shall include:
- the names in full, descriptions, addresses and other contact details of the expert, of each of the parties and of any person(s) representing a party in the administered expert proceedings;
- addresses to which notifications and communications arising in the course of the administered expert proceedings may be made;
- a list of the issues on which the expert shall make findings in the expert’s report;
- the procedure to be followed by the expert; and
- the location of any physical meeting of the expert and the parties and the language(s) in which the administered expert proceedings will be conducted.
- Modifications to the expert’s mission may be made by the expert, in writing, only after consultation with the parties. Any such written modifications shall be communicated to the parties and to the Centre.
- In the event of a disagreement between the parties as to the scope of the expert’s mandate, the expert may continue with the administered expert proceedings to the extent the expert considers that the issues set out in the expert’s mission fall within the scope of the expert’s mandate. Unless otherwise agreed by all of the parties, the expert shall give reasons for such considerations. The continuation of the administered expert proceedings shall be without prejudice to any determination by an arbitral tribunal or a competent judicial authority as to the scope of the expert’s mandate.