EXPERT WITNESS IN INTERNATIONAL ARBITRATION - DUTIES OF EXPERTS

1. OBJECTIVITY AND INDEPENDENCE

Experts must be objective and independent.

The qualities of objectivity and independence require that experts possess the willingness and capability to perform their role, are guided by the truth and report, not only aspects that are favourable to the party that has appointed them, but also those adverse to it, and maintain an objective distance from the appointing party, the dispute, and other persons involved in the arbitration.

The duty of objectivity and independence requires that experts have no f inancial interest in the outcome of the arbitration.

The duty of disclosure is ongoing from the time the expert’s appointment is proposed until the conclusion of the arbitration proceedings.

2. ACCEPTANCE OF APPOINTMENTS

It is recommended that experts formalise their acceptance, their declaration of objectivity and independence, and their disclosure of any circumstances that might give rise to doubt, in a document conforming to the model attached hereto as Annex D.

All expert reports must clearly identify the person or persons who acknowledge that the content is their own opinion and take responsibility for the conclusions.

3. DUTY OF DISCLOSURE

Both in their acceptances and in their reports, all experts must expressly declare that they comply with the requirements of objectivity and independence.

At the same time, experts must disclose any circumstance which, in the view of a reasonable and informed person, may give rise to justifiable doubts as to their objectivity and independence.46 CBP / CEA

The duty of disclosure is ongoing from the time the expert’s appointment is proposed until the conclusion of the arbitration proceedings.

Disclosure does not in and of itself imply the existence of a conflict of interest that would prevent an expert from participating in the arbitration. Experts must treat disclosure as a duty of information so that the parties and the arbitrators may evaluate the expert evidence with the full facts before them.

If an expert is unsure whether a circumstance can reasonably give rise to justifiable doubts about his or her objectivity and independence, then he or she must opt for disclosure. 144 In order to fulfil their duty of disclosure, experts must carry out an inquiry into their past and present relationships with the persons involved in the arbitration and with the dispute. To this end, experts are deemed to have in principle the same identity as the firm to which they belong. However, the period of time over which the firm’s past relationships are investigated can be reasonably reduced when the candidate has not personally participated in those relationships.

The list of examples provided below is intended to assist experts in fulfilling their duty of disclosure. It is a non-exhaustive list of questions that it is advisable to consider when evaluating whether there are circumstances that should be disclosed. Any questions that experts answer affirmatively will normally be indicative of the need to disclose, although there may be cases where, owing to triviality of the circumstance or some other reason, an affirmative answer does not reasonably imply the need for disclosure.

Links with the parties

1) Are you currently acting as an expert for or against one of the parties in some matter?

2) In the last 10 years, have you acted as an expert for one of the parties or against one of the parties in some matter?

3) Is your firm currently acting as an expert for one of the parties or against one of the parties in some matter, without your involvement?

4) In the last three years, has your firm acted as an expert for one of the parties or against one of the parties in some matter, without your involvement?

5) Is there any other personal or professional relationship, present or past, with either of the parties that you consider you should disclose?CBP / CEA 47 Links with the dispute

6) 7) 8) Have you, or has your firm, provided advice or issued an opinion on the dispute or on some aspect thereof at any previous time? Can the outcome of the dispute afford you some benefit or occasion you some detriment, financial or otherwise? If you answer yes to any of questions (1) through (5) and (9) through (15), is the other matter or arbitration related to the current arbitration? Links with the lawyers who have appointed you

9) Are you or your firm currently acting as an expert in another proceeding upon appointment by the same lawyer or law firm that has appointed you in the present arbitration? 10) In the last three years, has your firm acted, without your involvement, as an expert in another proceeding upon appointment by the same lawyer or law firm that has appointed you in the present arbitration?

11) In the last 10 years, have you personally acted as an expert in another proceeding upon appointment by the same lawyer or law firm that has appointed you in the present arbitration? 12) Is there any other personal or professional relationship, present or past, with one of the lawyers for the parties that you consider you should disclose? Links with other persons involved in the arbitration

13) Is there any personal or professional relationship, present or past, with third-party funders that you consider you should disclose?

14) Is there any other personal or professional relationship, present or past, with witnesses that you consider you should disclose? 15) Is there any personal or professional relationship, present or past, with the arbitral institution that you consider you should disclose?

4. CONTENT OF REPORTS

Experts shall submit a signed written report on the matters in their brief. The report must include at least the following aspects:

a) The expert’s professional credentials and experience in the disputed matter, identifying where applicable any aspects outside his or her competence;

b) A description of the brief received;

c) An explanation of the work method adopted;

d) Itemised identification of the documents and other information 48 CBP / CEA under analysis;

e) The conclusions reached;

f) If the conclusions contradict opinions previously expressed by the expert in other instances, then detailed justification for the change of view shall be given;

g) If there are counter-reports, then the points of agreement and disagreement shall be specified.

5. RESPECT AND LOYALTY

The expert shall act with respect and loyalty toward the arbitrators and the other parties.

Upon request by any of the parties, and provided the arbitrators consider it appropriate, the expert shall attend the hearing to defend his or her report, and to clarify any questions raised by the parties and the arbitrators.

Upon request by the arbitrators, the expert may amplify his or her report or participate in cooperative arrangements amongst experts.

6. FEES

Experts will collect their fees directly from the party that appointed them. In the case of arbitrator-appointed experts, the arbitrators shall fix the amount and the manner of payment of the fees.

The fees shall be agreed upon beforehand, taking into account the expert’s knowledge, effort and other objective factors. In no case shall the fees have a variable component that depends upon the outcome of the arbitration.

7. CONFIDENTIALITY

Experts must keep confidential any information that they learn in the arbitration proceedings. Such information includes:

a) The submissions of the parties;

b) The evidence presented;

c) Any settlement agreement that the parties may reach in relation to the dispute under arbitration; and

d) The decisions and the award.

The duty of confidentiality does not prevent experts from publishing CBP / CEA 49 an anonymised list of the proceedings in which they have participated, indicating for example:

a) A generic mention of the nature of the parties (e.g., company, entity or natural person);

b) The nationality or geographical origin of the parties;

c) The type of arbitration, institutional or ad hoc;

d) The names of the arbitrators and of the lawyers;

e) The sector or industry involved in the dispute;

f) The law governing the merits of the dispute;

g) The seat or place and the language of the arbitration; and

h) Whether the arbitration is pending an award, or closed.