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Whose Role Is It Anyway? Debating the Upsides and Downsides of Party- or Tribunal-Appointed Experts in Arbitrations

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April 8, 2019
BRG

BRG and Arbitration Chambers ran a debate at the Hong Kong International Arbitration Centre (HKIAC), Whose Role Is It Anyway? Debating the Upsides and Downsides of Party- or Tribunal-Appointed Experts in Arbitrations.

The event commenced with welcoming remarks from HKIAC Managing Counsel Wesley Pang and brought together prominent members of the Hong Kong arbitration community for a discussion among leading thinkers.

The opening speaker was BRG’s Mustafa Hadi, who leads BRG’s Disputes and International Arbitration practice in Asia–Pacific (APAC) and is co-leader of BRG’s APAC region. He had been selected to give the opening arguments in support of tribunal appointment of experts. He highlighted three key arguments in favour: that it was the only way to guarantee independence of expert advice, that it assisted arbitrators in cutting through complexity and reduced cost, and that it could increase the true efficiency of the arbitration process when used alongside party appointed experts.

Cameron Hassall, Head of International Arbitration for Greater China at Clifford Chance, responded in favour of party-appointed experts. He submitted this as the pro-client position and the only way to ensure party autonomy was respected. He argued that it is the parties’ role to present their case to the tribunal, which should solely consider and judge both the fact and expert evidence presented to them. Further, he contended that if tribunals who are trusted to make independent decisions appoint experts, they may be tempted to delegate responsibility to them.

Arbitration Chambers’ Robert Pé advocated for tribunal appointments. He contrasted party-appointed experts that he has seen present long reports clearly advocating for their parties’ position with experts operating under a clear framework laid out by tribunals. Speaking from experience, he noted that many reasons given by tribunals for not appointing experts, such as a heavier administrative burden or greater upfront costs, were unconvincing.

Giving the final arguments of the debate, IMF Bentham’s Cheng-Yee Khong introduced a litigation funder's perspective. She begun by addressing an issue raised earlier by moderator Kathryn Sanger (Herbert Smith Freehills) concerning ‘hired gun’ experts appointed by parties, with their presence an immediate red flag, suggesting their case is weaker than it appears. Funders whose only interest is in identifying sound cases to support find party-appointed experts instrumental in discerning the strengths and weaknesses of cases at the due diligence stage, and the costs incurred here are wasted should the matter proceed with only tribunal-appointed experts.

The discussion was rounded off with questions from the moderator and the audience. Ms. Sanger commented that ‘hot tubbing’ was definitely on the radar of senior arbitrators, and when managed well could be effective. Speaking from the floor, HKIAC Secretary General Sarah Grimmer referred to the Sachs Protocol, proposed at the 2010 ICCA Congress, as a potential way forward for addressing the issues raised by the speakers.

Commenting on the evening, BRG Managing Consultant Calvin Qiu said, "The debate was good humoured, and the panel interacted well with questions from the floor. I left the debate thinking that when it comes to tribunal- versus party-appointed experts, ‘It depends.’”

Find out more about the HKIAC.

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