Originally from: Between East and West: Essays in Honour of Ulf Franke - Hardcover
Between East and West: Essays in Honour of Ulf Franke - Electronic
Is There a Code of Conduct for Party-appointed Experts in International Arbitration?
What are the ethical duties applicable when an expert witness
testifies before an arbitral tribunal? This article explores that question.
Judicial practice in many countries establishes whether (1) a party-appointed
expert witness owes a principal duty to the party who engaged
the expert or to the court, (2) whether the expert must render objective and
impartial opinions in presenting evidence or is instead an advocate for the
engaging party and (3) whether the expert has a duty to disclose
relationships affecting objectivity or impartiality. Arbitration laws and
arbitration rules, however, are generally silent on these issues. The
Swedish Arbitration Act, for example, says nothing at all about the
conduct of a party-appointed expert witness. The UNCITRAL Model Law
on International Commercial Arbitration is similarly silent about the duties
of party-appointed experts. This silence stands in contrast with, for
example, Part 35 of the U.K. Civil Procedure Rules (Experts and
Assessors). Rule 35.3 of the CPR expressly states:
1. It is the duty of an expert to help the court on the matters
within his expertise.
2. This duty overrides any obligation to the person from whom
he has received instructions or by whom he is paid.
The associated Practice Direction for CPR Part 35 further specifies that
“expert evidence should be the independent product of the expert
uninfluenced by the pressures of litigation” and that “an expert should
assist the court by providing objective, unbiased opinion on matters within
his expertise, and should not assume the role of an advocate.”
The approach taken in the U.K. courts is not, however, universally
accepted. Many civil law judicial systems, of course, prefer tribunalappointed
experts rather than party-appointed experts. A number of
common law judicial systems also follow a different path.
About the Author:
Mark Kantor is an arbitrator and mediator and an Adjunct Professor at the Georgetown University Law Center. He is a Senior Research Fellow at the Vale Columbia Center for Sustainable International Investment, a Fellow of The Chartered Institute of Arbitrators and Editor-in-Chief of Transnational Dispute Management.