ICC Arbitration and ADR Commission Report on Issues for Experts Acting Under the ICC Expert Rules or the ICC Rules of Arbitration

This text is intended to provide general guidance regarding issues that should be considered by individuals who have been retained to serve as an expert in proceedings under the ICC Expert Rules (the ‘Expert Rules’), the ICC Rules of Arbitration (the ‘Rules of Arbitration’), or who are contemplating such an engagement. It also provides information that may be useful for other expert services to which these rules do not apply.
Experts may be natural or legal persons. The Expert Rules do not distinguish between the two. Nonetheless, legal persons acting as experts should bear in mind that the obligations set forth below apply both to them and to any employees, assistants and subcontractors who may be involved in the execution of their assignment. Although the Expert Rules are silent on the topic, an expert’s services are of a highly personal nature. Accordingly, the expert’s tasks should not be subcontracted unless all parties retaining the expert explicitly consent.
Experts provide a valuable service in helping to avoid or resolve disputes, and can serve several different roles under the Expert Rules and the Rules of Arbitration.

Expertise:

• Consulting expert services. At the request of a party, an expert can analyze facts and assist in finding solutions to specific problems before or during a dispute.
• Independent impartial expert services and non-binding evaluation. Either in connection with a pending arbitration or as the parties otherwise agree, the parties can engage an expert to establish the ‘true’ facts, to evaluate these facts, or to provide a nonbinding, impartial evaluation of a disputed issue within the expert’s expertise.
• Independent binding adjudication /determination by an impartial expert. Either in connection with a pending arbitration or as the parties otherwise agree, the parties can engage an expert to provide a binding determination regarding the solution of a disputed issue within the expert’s expertise. The extent to which the expert determination is contractually binding or otherwise will depend on the applicable rules, such as the ICC Dispute Board Rules and the applicable law.

Arbitration:

• Expert witness. In arbitrations, where the expert’s expertise helps the arbitral tribunal to understand the issues and resolve the dispute, one or more parties or the arbitral tribunal may engage an expert to evaluate certain facts relevant to disputed issues and to provide an expert opinion regarding the results of that evaluation.
• Expert consultant. In arbitrations, one or more parties may engage an expert to assist counsel in efficiently presenting the case.
• Expert as arbitrator. An expert also can be appointed to serve as an arbitrator in an arbitration. In this situation, the expert is not a witness, but a decision maker, who ensures that the arbitration is conducted consistently with the Rules, decides disputed factual issues, and applies the law to the facts to resolve the parties’ dispute. Experts who are acting as arbitrators should conduct themselves in the same manner as arbitrators who are not experts, and further discussion of arbitrator behavior is beyond the scope of this text.