Party Appointed Experts – Can They Be Usefully Independent?

The use of party appointed expert witnesses has been the subject of much attention in recent years, both in the context of domestic judicial systems, as well as in international arbitration. This is because they tend to be perceived as 'hired-guns', tailoring their evidence to positively reflect upon the party by whom they were appointed.This situation is exacerbated when parties and tribunals operate on an implicit understanding that this, indeed, is their role. Recent changes in 2010 to the International Bar Association's Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules) require a reconsideration of whether, and if so how they, along with the Chartered Institute of Arbitrator's Protocol for the Use of Party Appointed Expert Witnesses (CIArb Protocol), should be used to regulate the use of expert witnesses in international arbitration. The reforms aim to increase the efficiency and effectiveness of expert evidence, but there is scope for further improvement.

In this paper, CIArb President Professor Doug Jones AM provides a brief history to the reform undertaken in this area, initially in the UK and as adopted by Australian courts, examining the historical context of this contentious (but underexplored) area. Following this, a brief explanation of how the IBA Rules and CIArb Protocol operate to regulate this area is provided. Finally, areas in which there is room for reform within international arbitration are identified, and this paper concludes with the proposition that while recent developments in international arbitration show some promise, more needs to be done to ensure the useful independence of party appointed experts.

Download Article  |  Doug Jones