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LCIA comments on use of experts in international arbitration

ANALYSIS: The increasing size and complexity of international disputes means that experts will more frequently be called on to provide expertise, and in a wider variety of capacities, according to the London Court of International Arbitration (LCIA).09 Feb 2018

A new note by the LCIA calls for all those involved in arbitration to work to ensure that this expertise is "utilised to the fullest extent".

The LCIA's note summarises how experts are involved in arbitration in a variety of ways. It goes on to identify the benefits that experts can bring to the arbitration process in each of these areas, together with some associated challenges.

Advising behind the scenes

Experts operating in this capacity can help to ensure that technical details are not obfuscated or misrepresented in claims or defences.

However, as they are rarely visible to other participants, it is important for experts to bear in mind potential conflict issues.

Acting as party-appointed experts

This is the most common form of expert engagement in international arbitration.

However, there is a risk of 'ships passing in the night', with experts for each party taking fundamentally incompatible approaches to the same question.

Acting as tribunal-appointed experts

Tribunal-appointed experts are potentially more effective at bridging incompatible approaches.

However, appointing an expert itself requires the tribunal to have analysed the case and issues in sufficient detail in order to determine the profile of the required expert.

Providing expert determination services and split clauses

Referring different types of dispute to different dispute resolution methods can be more efficient than referring all disputes to arbitration or litigation.

However, split dispute resolution mechanisms require careful drafting to ensure that, for example, carving out certain disputes for expert determination works.

Acting as tribunal members

Having an expert as a tribunal member avoids one of the potential limitations of tribunal-appointed experts: a tribunal that relies too heavily on its appointed expert may be said to have delegated its fundamental decision-making.

The main difficulty with having an expert on a tribunal is actually getting the expert appointed, which requires determining the most appropriate area of expertise.

The note also suggested ways in which better use could be made of experts in international arbitration. These included ensuring that those involved in seeking expert involvement developed their own familiarity of the issues where experts are involved. Quantum was identified as one such issue of significance to the vast majority of cases.

Experts must also ensure that they are flexible enough to facilitate a discussion with the tribunal and other experts.

Stuart Davey is a technology, media and telecoms disputes expert at Pinsent Masons, the law firm behind Out-Law.com.