The use of party-appointed experts in international arbitration has been the subject of debate for years. The primary role of experts is to assist the arbitral tribunal on matters within his or her expertise and that may be outside the expertise of the arbitrators. In practice, the role of experts can be far broader. In some cases, experts are retained to provide advisory and other support to the client and/or arbitration counsel team at an early stage, before becoming a testifying independent expert or in parallel with the work of a separately engaged testifying expert.
Increasingly, women are acting as either advisory or testifying experts in international arbitration after decades of the expert field being male dominated.
The party-appointed testifying expert treads a delicate line with respect to independence. On the one hand, the expert is contractually engaged and is paid for their time performing services on the case. Naturally, the expert may want to support the party and potentially receive subsequent engagements. On the other hand, the testifying expert has a duty to remain independent, assist the arbitral tribunal and avoid acting as advocate for the party that appointed the expert.
Recently, there has been concern that party-appointed experts and/or expert reports have become expensive vehicles by which the parties reargue their respective cases. There is also a perception by some that party-appointed experts are essentially advocates in disguise, which has had an adverse impact on the evidentiary weight that some arbitral tribunals give to party-appointed experts’ evidence.
The 2021 survey prepared by BCLP’s International Arbitration Group focuses on the perceived problems with party-appointed experts. Are there practical steps that can or should be taken to mitigate the perceived problems with party-appointed testifying experts? If so, who should take the lead in implementing such steps? Are there better alternatives for adducing expert evidence in arbitration? What can be done to preserve the role and usefulness of the party-appointed testifying expert?
This initiative is led by ArbitralWomen member Claire Morel de Westgaver, who commented, “Having the views of various stakeholders including arbitration users, arbitrators and expert witnesses themselves will help identify realistic solutions and ultimately continue to shape the future of international arbitration in an ever more complex world where expertise is bound to become increasingly significant.”
The expert evidence survey will benefit from input from a diverse cross-section of the international community, including female practitioners, arbitrators, clients and experts.
You can participate in the survey here.
Submitted by Dana MacGrath, ArbitralWomen President and Omni Bridgeway Investment Manager, Legal Counsel
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Policy on Funding Moot Competition Teams
Each year ArbitralWomen provides support to a number of Teams who participate in dispute resolution competitions, such as the Vis or Vis East International Arbitration Moot by covering their registration fee.
Following are the conditions for the funding:
Any qualified team requesting financial assistance must complete an application form providing details of the teams, resources, and the reason for the requested assistance. The application form is available on the website, and may be amended from time to time as the Board deems appropriate.
The Board, through its Moot Bursary Committee, shall consider all applications received and decide which team(s) shall be supported through payment of its(their) registration fee to compete. In general, teams selected will be from different countries. Applications filed after the deadline will be disregarded.
Criteria of selection:
The team must reflect ArbitralWomen's mission of promoting the participation of women in dispute resolution, i.e. at least half of the members of a team must be women.
The team must demonstrate the need for financial assistance.
Priority will be given to teams:
who have not previously participated, and whose school has not previously participated;
who have no support from their universities or no coach;
who come from developing countries or jurisdictions which, in the sole discretion of the Board, are in the greatest need of support for the advancement of women in dispute resolution;
of smaller number of students composing the team (for example 4 students as opposed to 8).
An all-female team may be awarded the ArbitralWomen President’s Bursary if the other requirements are met.
Nothing in this Policy prevents a team, which has already received funding in one year, from applying in future years. The Board shall treat each application on its merits and in relation to other applications received for that particular year.
The Board shall effect payment to the final payee rather than directly to the team. In the event the team for any reason cannot participate, the Board at its sole option may request a refund from the organizing authority, may request the organizing authority to apply the funds to assist another team in that year, or may request that the funds be used to pay for another team in the following year.
Funding will, in the first instance, be sought from external sponsors, who shall be identified and introduced to the sponsored team(s). Further funding by ArbitralWomen itself in any given year will be contingent upon the existence and maintenance of sufficient funds in the account of ArbitralWomen. Each year, the Board will decide the number of awards to be given in that year. Nothing in this Policy obliges the Board to provide funding in any given year.
Although the ArbitralWomen Moot Bursaries are limited to payment of the registration fee, as mentioned above, there is nothing to prevent the chosen sponsors from providing additional assistance to the teams assigned as their "fundee", but any such arrangement will be made directly between the sponsor and the applicable team.