Using Experts EFFECTIVELY & EFFICIENTLY IN ARBITRATION
Galloway, Patricia D., Dispute Resolution Journal
A look at the rules pertaining to tribunal experts, and methods of using of experts in arbitration to streamline and narrow the issues and present expert testimony more effectively.
In complex matters, particularly those involving construction, one of the costs almost always incurred by the parties is expert evidence and testimony.1 How expert evidence and testimony is managed can have a direct impact on the cost and length of the arbitration process. Before considering how to achieve these savings, one should first ask why experts are used. The purpose of expert reports and testimony is to assist the arbitration panel's deliberations and specifically facilitate the panel's understanding of the technical issues. To be of real assistance, experts must be independent, objective and not have any interest in the outcome of the arbitration.
This article discusses the arbitration rules concerning the arbitrator's obligation to conduct the proceedings in an efficient and cost-effective manner, the rules pertaining to the use of tribunal experts, and methods of using experts in arbitration to streamline and narrow the issues and present expert testimony more effectively and thus save time.
Arbitration Rules and Case Management
The established arbitration institutions have rules and procedures in place that give arbitrators wide discretion in the conduct of arbitration proceedings and encourage them (as well as the parties) to conduct the arbitration process in a manner that is cost-effective and efficient. For example, Rule R-32(2) of the American Arbitration Association (AAA) Construction Industry Arbi - tration Rules provides: "The arbitrator, exercising his or her discretion, shall conduct the proceedings with a view toward expediting the resolution of the dispute...."
Similarly, Rule R-23, which deals with the preliminary management hearing, authorizes the arbitrator to "issue an agenda in advance" of that hearing "outlining the scope of the hearing in an effort to efficiently manage the process and eliminate superfluous is - sues."2
In like manner, Rule L-4 of the Procedures for Large, Complex Construction Dis putes lists matters that shall be considered at the preliminary management hearing, ending with "such other items that may facilitate the efficient and cost effective management of the arbitration."3
The International Arbitration Rules of the International Centre for Dispute Resolution (ICDR)4 similarly provide in Article 16(1): "Sub - ject to these rules, the tribunal may conduct the arbitration in whatever manner it considers appropriate...." It goes on to say in Article 16(2): "The tribunal, exercising its discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute." It also provides that the tribunal may conduct "a preparatory conference with the parties for the purpose of organizing, scheduling and agreeing to procedures to expedite the subsequent proceedings."
All of these rules give the panel flexibility in handling the proceeding, but the overriding goal is efficiency and lower costs.
The UNCITRAL5 Arbitra - tion Rules, on which the ICDR international rules were based, provides in Article 17:
Subject to these Rules, the arbitral tribunal may conduct the arbitration in such a manner as it considers ap - propriate.... The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and ex - pense and to provide a fair and efficient process for re - solving the parties' dispute.6
This article similarly grants the arbitrator very open-end - ed authority to conduct the arbitration and emphasizes doing so in a way that encourages efficiency. Both this rule and the ICDR rules specifically state that the arbitrator has discretion as to how to most effectively manage the arbitration process.
This approach is echoed in the International Bar Asso - ciation (IBA) Rules on the Tak ing of Evidence in Inter national Arbitration (IBA Evi dence Rules), which states: "The consultation on evidentiary issues may address the scope, timing and manner of the taking of evidence, including: . …