The Use of Tribunal-Appointed Experts in International Commercial Arbitration: Practical Observations and a Proposal for Ensuring Fairness

June 2, 2017

Abstract:

An arbitral tribunal typically possesses broad powers to set the procedures within an arbitration, including the appointment and management of its own expert to assist the tribunal with technical subjects or other complex issues. Without clear procedures in place, however, the use of tribunal-appointed experts can needlessly delay an arbitration, violate the tribunal’s terms of reference, result in unreported ex parte communications with the tribunal, or otherwise affect the parties’ fundamental right to be heard—even when tribunalappointed experts are thoroughly vetted. It is thus crucial that the parties are aware of their right to be heard and cognizant of the proper procedures for both challenging and managing a tribunal-appointed expert. Controlling the arbitration from its inception and understanding the role of tribunal-appointed experts will help ensure that the tribunal and parties avoid any impropriety or due process concerns.