ICC Arbitration and ADR Commission Report on Issues for Arbitrators to Consider Regarding Experts
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Arbitration & ADR Commission
This Report of the ICC Commission on Arbitration and ADR is an update of a 2009 Report prepared by the Task Force ‘Guidelines for ICC Expertise Proceedings’. The Report has been updated by Erik Schäfer and David B. Wilson, co-chairs of the initial Task Force, and is now aligned with the 2021 ICC Rules of Arbitration, the ICC Expert Rules in force as from 1 February 2015, as well as recently released Commission Reports.
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This text is intended to help guide arbitrators on issues that they should consider regarding tribunal-appointed and party-appointed experts in arbitrations under the ICC Rules of Arbitration (‘Rules of Arbitration’). The text may also be useful in arbitrations to which the Rules of Arbitration do not apply. Specifically, the text explores how to use experts effectively and efficiently, with an eye toward avoiding certain approaches that may cause problems during or even after the arbitration.
In ICC Arbitrations, experts may be used to prove or establish facts that are relevant to the merits of the parties’ dispute. Experts also may be used to help arbitrators understand relevant issues of law that will govern the tribunal’s decision on the merits (e.g. where the arbitrators are unfamiliar with the laws applicable to the dispute).
The Rules of Arbitration include two distinct mechanisms for the appointment and use of experts. Under Article 25(2), the tribunal may hear testimony from experts whom one or more parties appoint to offer testimony relevant to the parties’ dispute. Under Article 25(3), after consulting with the parties, the arbitral tribunal may retain one or more experts directly, define their terms of reference, receive their reports, and permit the parties to question them at the hearing. Whether the expert is party-appointed or tribunal-appointed, the Rules of Arbitration give the tribunal considerable flexibility regarding how experts may be used in the arbitration, and likely more flexibility than would be available in national courts.
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