![]() Parties operating in an adversarial system retain control over the conduct of the proceedings and the way in which their case is presented, including the appointment, and deployment, of experts. In common law domestic litigation, experts are almost invariably appointed by the parties, and only exceptionally by the court. There are important differences in the use of experts between common law and civil law jurisdictions. These experts are clearly distinguishable from and are deployed with greater regularity than technical experts. Finally, delay, disruption and quantum experts are sorters of facts, the analyses of whom are crucial to evaluating such claims. Legal experts are primarily used to explain aspects of relevant laws with which the tribunal is not familiar. ![]() Technical experts assist when a dispute involves a specialist area of knowledge on which the tribunal may require assistance. There are three broad categories of expert evidence that can be identified: strictly technical expertise, legal expertise, and expertise on delay, disruption and quantum. As such, identifying the challenges associated with their use is vital to ensure that common traps are avoided and that maximum utility is derived from expert evidence. Expert evidence is particularly valuable to arbitral tribunals in cases with complex factual and legal issues, as an expert can provide much-needed clarification to the tribunal on the more intricate points. The general role of expert witnesses, whether they be appointed by the parties or the tribunal, is to assist the tribunal in its decision-making by providing relevant and independent evidence in their area of expertise. ![]() The role and type of expert witnesses in arbitration The chapter then explores some ways in which these challenges may be overcome: first, considering existing solutions in international arbitration, then proposing approaches to resolving these issues that build on and supplement the existing mechanisms.īefore examining the challenges, however, it is instructive to consider the role of the expert witness and the distinctive approaches to expert evidence between common and civil law jurisdictions. This chapter discusses the challenges of expert evidence, from both party-appointed and tribunal-appointed experts, which can undermine the effectiveness of the evidence. In international arbitration, the two approaches have been combined but with increasing reliance by counsel from both traditions on party-appointed experts. Civil law has followed a different path, relying on court-appointed experts. Party-appointed experts are widely used in common law jurisdictions, such as the United Kingdom, where Lord Mansfield was speaking. Since the 18th century, the use of expert evidence has only continued to grow. With this statement, his Lordship paved the way for expert opinions to be accepted as evidence designed to assist judges in common law courtrooms. ![]() In 1782, Lord Mansfield said that ‘in matters of science, the reasonings of men of science can only be answered by men of science’. ![]()
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