DATE DOWNLOADED: Sun Mar 24 13:57:23 2024

SOURCE: Content Downloaded from HeinOnline

Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.

Bluebook 21st ed.

Mirna Monla, Testing the Reliability of Expert Evidence in International Arbitration,
16 DISP. RESOL. INT'l 169 (2022).

ALWD 7th ed.

Mirna Monla, Testing the Reliability of Expert Evidence in International Arbitration,
16 Disp. Resol. Int'l 169 (2022).

APA 7th ed.

Monla, Mirna. (2022). Testing the reliability of expert evidence in international
arbitration. Dispute Resolution International, 16(2), 169-187.

Chicago 17th ed.

Mirna Monla, "Testing the Reliability of Expert Evidence in International
Arbitration," Dispute Resolution International 16, no. 2 (October 2022): 169-187

McGill Guide 9th ed.

Mirna Monla, "Testing the Reliability of Expert Evidence in International
Arbitration" (2022) 16:2 Disp Resol Int'l 169.

AGLC 4th ed.

Mirna Monla, 'Testing the Reliability of Expert Evidence in International
Arbitration' (2022) 16(2) Dispute Resolution International 169

MLA 9th ed.

Monla, Mirna. "Testing the Reliability of Expert Evidence in International
Arbitration." Dispute Resolution International, vol. 16, no. 2, October 2022, pp.
169-187. HeinOnline.

OSCOLA 4th ed.

Mirna Monla, 'Testing the Reliability of Expert Evidence in International
Arbitration' (2022) 16 Disp Resol Int'l 169 Please note: citations
are provided as a general guideline. Users should consult their preferred citation
format's style manual for proper citation formatting.

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 169

Testing the Reliability

of Expert Evidence in
International Arbitration
Mirna Monla*

In recent years there has been an evolution in expert evidence in international

arbitration towards the Anglo-Saxon practice of party-appointed witnesses
as the preferred means of evaluating highly technical questions. Yet
regardless of the type of expert appointed, the fundamental principles of
party autonomy in arbitration have to a certain extent divorced the arbitral
procedure for expert evidence from the local framework usually in place to
control its reliability. This article explores two areas in which the absence of
guidance for expert evidence in international arbitration stands in contrast
with the procedural safeguards for expert evidence in litigation: first, as to
the admissibility of an expert's opinion, and secondly, as to the professional
and ethical regulation of expert testimony. Most of the research is drawn
from common law jurisdictions, but consideration is also given to civil law
procedures with the example of France being used as a primary counterpart.

Introduction

History of the partisanexpert

Justice Learned Hand traces the use of specialised juries as far back as
the 14th century.1 Their use seems to have been particularly common in
* Mirna Monla is based in Berlin, Germany, where she works as a commercial manager
in the construction and renewable energy sectors. The current article is adapted from
her winning submission to the International Commercial Law Alliance's 2021 essay
competition in international and comparative construction law.
1 Learned Hand, 'Historical and Practical Considerations Regarding Expert Testimony'
(1901) 15 Harv L Rev 40, 41.
170 DISPUTE RESOLUTION INTERNATIONAL Vol 16 No 2 October 2022

the context of trade disputes in urban English communities, where guild

members would have been summoned to comment on the conduct of other
members of the same trade.2 A more dramatic example of the early use of
experts in legal proceedings as well as its associated danger is offered by the
case against Rose Cullender and Amy Duny in mid-17th century England.'
In 1662, both women were accused of bewitching several neighbourhood
children. A trial was held in which scientist Dr Thomas Browne, a 'man of
great knowledge' was brought in to provide expert testimony, and it was
his professional opinion that the children had indeed been bewitched.4
Such testimony by a highly regarded medical professional at the time may
very well have influenced the jury's decision and on 17 March 1662, Rose
Cullender and Amy Duny were hanged for witchcraft.
The practice of party-appointed witnesses in litigation as we know it today
does not become well-established until the 18th century, where an early
example from the field of medical malpractice helps establish the concept
of professional standard: 'this is the usage and law of surgeons: then it was
ignorance and unskillfulness in that very particular, to do contrary to the
6
rule of the profession, what no surgeon ought to have done'. A few years
later, the model of the partisan expert was formalised in the case of Folkes v
Chadd.7 Questioning the trial judge's exclusion of an engineer's testimony
in the case of a damaged harbour, the appeal judge clearly establishes the
need for skilled assistance in cases of technical or scientific complexity,
something which was at the time particularly pertinent in the context of
the rapid technological developments of the industrial revolution:
'I cannot believe that where the question is, whether a defect arises from
a natural or artificial cause, the opinions of men of science are not to be
received. [...] Therefore we are of opinion that his judgment, formed on
facts, was very proper evidence'.8
It is precisely then this particularity, that of the admissibility of opinion,
which sets the expert witness apart from the common witness. Yet it is likely
also that it is this feature which is at the source of misgivings regarding
experts' reliability. Any such reservations are likely aggravated when the
expert is appointed and compensated directly by the parties, leading to the
image of experts as 'hired guns' motivated solely by financial gain.

2 Ibid 42.
3 T B Howell, A Complete Collection of State Trials and Proceedings for High Crimes and
Misdemeanoursfrom the EarliestPeriod to the Year 1783, Vol 6 (T C Hansard 1816), 647.
4 Ibid 697.
5 Ibid 702.
6 Slater v Baker and Stapleton [1767] 2 Wils KB [359], [362].
7 [1782] 3 Dougl KB [157].
8 Ibid [159],
TESTING THE RELIABILITY OF EXPERT EVIDENCE IN INTERNATIONAL ARBITRATION 171

The expert in internationalarbitration

International arbitration has seen party-appointed witnesses become
the norm, with tribunals appointing experts themselves only in rare
circumstances. 9 In parallel, safeguards against violations of due process
have led in recent years to a perceived phenomenon of 'due process
paranoia',10 where tribunals may be hesitant to deny procedural requests
from the parties out of fear that that the award be challenged. Such
caution is in turn accused of compromising the efficiency of arbitration.
Interestingly, many parties to arbitration would welcome a widening of
arbitrators' procedural powers or at least a better use of their existing
powers to counter this trend." While voluntary rules such as the IBA
Rules12 and the CIArb Protocol" offer a framework to counter procedural
abuses by the parties and their experts, there remains a lack of uniformity
in international arbitration when it comes to testing the reliability of
expert evidence.
'Party autonomy, a sine qua non of arbitration, means that there is no
set standard under which experts are engaged, vetted or present their
evidence, and the procedural safeguards that evolved in the common
law or civil law traditions for court cases may not apply under applicable
arbitration rules. What has emerged is a system that lacks a standard
practice to challenge the credentials of or to review the credibility of a
chosen expert and his or her opinion.'
The following article explores two such procedural safeguards, the
admissibility of opinion as well as the ethical regulation of expert testimony,
and to what extent the principles developed in litigation could be adapted
into arbitration.

9 Rolf Trittmann and Boris Kasolowsky, 'Taking Evidence in Arbitration Proceedings

Between Common Law and Civil Law Traditions - The Development of a European
Hybrid Standard for Arbitration Proceedings' (2008) 31(1) UNSW LawJournal 330, 340.
10 'International Arbitration Survey: The Evolution of International Arbitration' (White
and Case 2018), 27.
11 Ibid.
12 IBA Rules on the Taking of Evidence in International Arbitration ('IBA Rules') (2010).
13 CIArb Protocol for the Use of Party-Appointed Witnesses in International Arbitration
('CIArb Protocol') (2007).
14 Mdlida Hodgson and Melissa Stewart, 'Experts in Investor-State Arbitration: The Tribunal
as Gatekeeper' (2018) 9J J D S 453, 454.
172 DISPUTE RESOLUTION INTERNATIONAL Vol 16 No 2 October 2022

Evidentiary admissibility: litigation

England and Wales

Standards of admissibility in England and Wales are governed by the
Civil Procedure Rules (CPR), first introduced in 1998. Part 35 addresses
procedural law surrounding experts.
In his final report on the civil justice system in England and Wales,
Lord Woolf expressed his frustration at the unnecessary expense caused
by uncontrolled expert evidence.15 He had earlier in his interim report
argued for a continental-style system of single experts in order to counter
what he calls the 'litigation support industry' that had grown out of the
adversarial system. This proposal had generated strong resistance among
the legal community and the final report softened the recommendation
into a compromise between the need to control expert evidence and the
traditions of the adversarial framework. This compromise, which became
the basis of the CPR, frames the duties and responsibilities of the expert by,
for example, limiting the expertise to what is reasonably required to resolve
the case (CPR 35.1), allowing the courts to appoint singlejoint-experts (CPR
35.7), requiring permission from the courts in the case of party-appointed
experts (CPR 35.4) and, finally, allowing for court-appointed experts, called
'assessors' (CPR 35.15). Unlike civil law jurisdictions, however, assessors are
typically only used for small cases and are rare in construction disputes. 16
The CPR's foremost standard of admissibility, which can be traced back
to a desire for cost reduction and efficient case management, is then one
of proportionality.17 The CPR does not clarify how to determine what is
'reasonably required' but such a framework can be found in the 2016
Supreme Court judgment in Kennedy v Cordia (Services) LLP, governed by
Scots law.18 The following four considerations are suggested:
(1) whether the proposed expert evidence will assist the court in its task
[relevance];
(2) whether the witness has the necessary knowledge and expertise [skill];
(3) whether the witness is impartial in his presentation [independence];
and
(4) whether there is a reliable body of knowledge underpinning the
evidence [reliability] .19

15 Harry Woolf, 'Access to Justice', Final Report to the Lord Chancellor on the Civil Justice
System in England and Wales (2006), Ch 13 para 2.
16 Kim Rosenberg, 'The Use of Experts in Resolving Disputes in Common Law Jurisdictions'
(2015) [7].
17 Ibid [10].
18 [2016] UKSC 6.
19 Ibid [44].
TESTING THE RELIABILITY OF EXPERT EVIDENCE IN INTERNATIONAL ARBITRATION 173

In considering their admissibility standards, the Supreme Court judgment

in Kennedy draws, among others, upon two preceding cases. The first, R
v Bonython, 0 established what is today referred to as the three-pronged
'Bonython test' of admissibility:
(1) whether the court needs the evidence to make a judgment [relevance];
(2) whether there is a reliable body of knowledge [reliability]; and
(3) whether the witness is an expert is his field [skill].21
The Bonython test was recognised by the Supreme Court and formed the basis
of three of their four suggested considerations. The fourth consideration, that
of the impartiality of the witness, was articulated in the second case, National
Justice Compania Naviera SA v Prudential Assurance (The Ikarian Reefer),22 the
main principles of which were eventually embodied in the CPR.
In arguing against an over-rigid interpretation of strict necessity, the
Supreme Court in Kennedy makes an interesting reference to the ruling
as to admissibility of expert evidence in the American case of Daubert v
Merrell Dow Pharmaceuticals Inc," which will be discussed below." There
has been some discussion in recent years about introducing a Daubert-
style admissibility test to English criminal law. This is in reaction to a
series of high-profile cases involving unreliable expert evidence. The
Law Commission, in its consultation paper25 and later in its proposal to
Parliament,m sets out a case for defining the second of the Bonython limbs,
the 'reliable body of knowledge', by means of a statutory admissibility test. In
its response to the Law Commission report, the government acknowledges
the benefits of such a test but ultimately rejects the proposal out of concern
for its implementation costs, noting particularly the additional pre-trial
admissibility hearings which would be required. 7

United States
Requirements for the admissibility of expert evidence are not uniform
across the US and are governed by one of the following two standards: the
Frye general admissibility formulated in Frye v United States28 and the Daubert

20 [1984] 38 SASR 45.

21 Kennedy (n18) [43].
22 [1993] 2 Lloyd's Rep 68.
23 509 US 579 (1993).
24 Kennedy (n 18) [46].
25 The Law Commission, 'The Admissibility of Expert Evidence In Criminal Proceedings in
England And Wales' (Law Com No 190, 2009).
26 The Law Commission, 'The Admissibility of Expert Evidence In Criminal Proceedings in
England And Wales' (Law Com No 325, 2011).
27 Ministry ofJustice, 'The Government's response to the Law Commission report' (2013) [8].
28 293 F 1013 (DC Cir 1923).
174 DISPUTE RESOLUTION INTERNATIONAL Vol 16 No 2 October 2022

tests. Federal courts exclusively follow Daubertwhile state courts are split
between both standards, some even applying a combination of both.
Until the early 20th century, there were no particular requirements
regarding the admission of expert witness testimony, discretion being left
entirely to the courts. 29 The 1923 landmark case of Frye v United States30
would set the standard used throughout the US for the following seven
decades until the 1993 Daubertruling.
In the 1923 case, counsel for the defendant appealed an earlier conviction
of second-degree murder on the grounds of expert testimony which had
been, in their opinion, wrongfully excluded. The evidence in question was
a systolic blood pressure deception test developed by Dr William Moulton
Marston, a Harvard graduate in both psychology and law and early pioneer
in the nascent field of applied psychology. 31 The trial judge refused the
admission of the lie detector test as evidence on the basis that the science
had not yet become a 'matter of common knowledge'.32 One year later,
the trial court's conviction, and most importantly its decision to exclude
the expert evidence, was affirmed by the DC Circuit on appeal in a tersely-
worded two-page judgment:
'Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere in
this twilight zone the evidential force of the principle must be recognized,
and while courts will go a long way in admitting expert testimony deduced
from a well-recognized scientific principle or discovery, the thing from
which the deduction is made must be sufficiently established to have
gained general acceptance in the particular field in which it belongs.' 33
It is worth noting thatJustice McCoy's refusal to admit the lie detector test may
have had less to do with its lack of common acceptance than with its perceived
flawed scientific methodology.34 Methodology as a factor of reliability would
be taken up by the Daubert ruling 70 years later. Nevertheless, the Frye test
is today known for its simple two-step admissibility review process; the court
first identifies the scientific field of the testimony and then decides whether
the scientific principle presented is generally accepted in that field. The Frye

29 Janusz Puzniak, 'Expert Evidence: The Road from Daubert to Joiner and Kumho Tire'
(2000) 37(3) Court Rev 32, 32.
30 293 F 1013 (DC Cir 1923).
31 Kenneth J Weiss, Clarence Watson and Yan Xuan, 'Frye's Backstory: A Tale of Murder,
a Retracted Confession, and Scientific Hubris' (2014) 42J Am Acad Psychiatry Law 226,
227.
32 Jill Lepore, 'On Evidence: Proving Frye as a Matter of Law, Science, and History' (2015)
124(4) Yale LJ 1092, 1129.
33 Frye (n 30) 1.
34 Lepore (n 32) 1136.
TESTING THE RELIABILITY OF EXPERT EVIDENCE IN INTERNATIONAL ARBITRATION 175

test's advantage is its relative simplicity and the uniformity of the results it
produces; it has, however, been criticised for setting a threshold that is too
high and that would disqualify otherwise sound evidence if the conclusions
drawn are relatively novel in the given field. 5 While Dr Marston's name is not
mentioned in the landmark ruling, he did in the end manage to cement his
legacy by popularising his polygraph in fiction: the 'lasso of truth' held by the
comic book character he later created, Wonder Woman.3 6
The next chapter in the history of the admissibility of expert evidence
in the US will be written in 1975 with the enactment by Congress of the
Federal Rules of Evidence (FRE). The FRE were designed to assist federal
judges in evidentiary matters such as the admissibility of expert testimony;
they failed, however, to clarify whether the Frye test had survived the new
rules. The FRE favour an approach grounded in the admission of evidence
rather than its exclusion, and one which affords judges wide latitude in
7
commenting on the received evidence:
'We could see that allows discretion to be exercised by ajudge is preferable
to hardening a rule of evidence, to etching it in granite. We have always
operated, Mr. Chairman, to afford the US district judges wise discretion
with respect to the admission or exclusion of evidence.'3
Article VII of the FRE deals directly with the admissibility of expert evidence.
Rule 702 of the FRE establishes the three-pronged admission requirement
discussed earlier in the CPR of skill, relevance, and reliability. It does not,
in contrast, require the independence of the expert:
'A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine
a fact in issue; [Skill]
(b) the testimony is based on sufficient facts or data; [Reliability]
(c) the testimony is the product of reliable principles and methods;
and [Reliability]
(d) the expert has reliably applied the principles and methods to the
facts of the case [Relevance].'>9
Rule 704 allows the expert to opine on the 'ultimate issue' that is to be
35 Puzniak (n 29) 33.
36 Weiss (n 31) 231.
37 Jon R Waltz, 'The New Federal Rules of Evidence: An Overview' (1975) 52(2) Chi-Kent L
Rev 346, 349.
38 Hearings on the Federal Rules of Evidence, 93rd Congress (US Government Printing
Office, 1974), 206.
39 Federal Rules of Evidence, Rule 702, (2021).
176 DISPUTE RESOLUTION INTERNATIONAL Vol 16 No 2 October 2022

decided by the court. Finally, Rule 706 allows the court to appoint their own
experts. This provision is justified by its effect on partisan witnesses, who
may become more circumspect in their opinions if the possibility, however
infrequent, of a court-appointed expert exists.40
The relationship of the FRE to the Frye standard was not clarified until
the 1993 US Supreme Court ruling in Daubertv Merrell Dow Pharmaceuticals
Inc.4 i The ruling held that the Frye general acceptance standard had been
supplanted by Rule 702 and outlined a non-exhaustive list of criteria
determining admissibility. These guidelines have been adopted by US
Federal Courts as well as some state courts and are today referred to as the
Daubert standard of admissibility.
The Supreme Court opinion explicitly cites Rule 702 to exclude the concept
of 'general acceptance' as a requirement for admissibility, affirming that the
two criteria of relevance and reliability supersede the Frye standard in federal
trials.42 The Court confirms the flexible approach envisioned by the FRE as
well as the trial judge's role as a gatekeeper and further directs district courts
to consider the following factors in evaluating reliability of expert evidence:
1. the theory is falsifiable;
2. the evidence has been published and subjected to peer review;
3. the evidence has a known potential error rate; and
4. the underlying methodology is generally accepted in the field (a
remnant of the Frye test)
.

These factors are neither exhaustive nor necessary conditions of admissibility.

They function to aid the judges in their gatekeeping roles and prevent pure
speculation from entering the trial.44 Above all, the question of evidentiary
reliability under Daubertis one of methodology, not of conclusions:
'The focus, of course, must be solely on principles and methodology, not
on the conclusions that they generate. '4
46
The Daubert ruling was later joined by General Electric Co v Joiner, which
establishes the standard for the appellate review of admissibility decisions
47
and Kumho Tire Co v Carmichael, which confirms that expert testimony
extends to non-scientific fields, to form the 'Dauberttrilogy'. The FRE were
amended in 2000 to incorporate the Dauberttest.

40 Hearings on the Federal Rules of Evidence (n 39), 155.

41 509 US 579 (1993).
42 Ibid 588-89.
43 Ibid 593-94.
44 Henry F Fradella, Lauren O'Neill and Adam Fogarty, 'The Impact of Daubert on Forensic
Science (2004) 31(2) Pepp L Rev 323, 329.
45 Daubert (n 41) 59.
46 522 US 136 (1997).
47 526 US 137 (1999).
TESTING THE RELIABILITY OF EXPERT EVIDENCE IN INTERNATIONAL ARBITRATION 177

France
While differences arise within the distinct national laws, general evidentiary
concepts across the civil law world are comparable. The civil law judge,
unlike his common law counterpart, is an active investigator and factfinder,
a fundamental difference which affects all other issues in the proceedings,
including evidentiary matters.48 Expert witnesses in France and in the
wider civil law tradition are appointed directly by judges when particular
knowledge is required. 49 This fulfills the requirement of independence
shared with the CPR, without having to engage the question of how experts
can be wholly independent from the parties who engage them. A duty
0
of impartiality is furthermore codified in procedural law and subject to
51
the penalty of recusal. There has been some debate in France around
the question of whether private extra-judicial expertise work, typically on
behalf of insurers, compromises the impartiality required to serve as an
independentjudicial expert.52 In 2008, the Cour de Cassation ruled that both
engagements are not, in fact, automatically incompatible. 53 Nevertheless,
some courts have been reticent to accept individuals who do regular private
expertise work onto their judicial lists, while others have instead opted to
include a voluntary disclosure section onto their application forms. 54
The criterion of skill is codified by the selection of experts based on their
qualification. 55 Though French courts are by no means limited to doing
so, 56 they will often select their expert from lists of pre-qualified individuals.
In France, two lists are in place: a single national list administered by
the office of the Cour de Cassation and multiple lists administered by
the respective lower courts of appeal.5 7 Experts are initially added to the
appeals courts' lists for a probationary period of three years, which may
be renewed for another five years. 58 Higher standards are required to be
admitted on the national list, such as one's inscription on a lower list for

48 Anna Magdalena Kubalczyk, 'Evidentiary Rules in International Arbitration - A

Comparative Analysis of Approaches and the Need for Regulation' (2015) 3(1) GroJIL
85, 87-89.
49 French Code of Civil Procedure (C pr civ), s 232.
50 C pr civ, s 237.
51 C pr civ, s 234.
52 Amel Ghozia, 'L'expert dejustice dans son environnement: les exigences d'indpendance
et d'impartialit6 face aux conflits d'6coles et d'interets' (2019) 2019/1 no 22JDSAM 17.
53 C civ 2e, 22 May 2008, no 08-10840 and no 08-10314.
54 Ghozia (n 52) 17, 22.
55 C pr civ, s 233.
56 C pr civ, s 265.
57 L no 71-498, 29 June 1971, Art 2.
58 Ibid.
178 DISPUTE RESOLUTION INTERNATIONAL Vol 16 No 2 October 2022

a certain number of years. 59 Admission requirements in France are not

firmly defined, in the sense that it is up to the candidate to prove that they
are sufficiently qualified.60
With respect to the question of relevance, French procedural law agrees
with the Anglo-Saxon requirement of necessity, with expertise being
restricted to instances where the court does not have enough knowledge
to decide on a given matter.6 1 In those cases, the court must set out in its
decision to appoint an expert the grounds for necessity, in addition to the
name of the expert, the scope of their mission and the time given to the
expert to complete their work.62 The sovereignty of the courts to decide
on the need for expertise extends to the ability of the courts to refuse to
appoint an expert, even if that expert wasjointly requested by both parties.63
By means of strong element of control on admissibility imbedded in the
powers granted to the courts by procedural law, the French legal tradition
shares the admissibility criteria of skill, relevance, and independence with
both the CPR and Daubertstandards, as well as that of independence with
the CPR. The single missing commonality is then the absence of a codified
consideration of the reliability of a given expert opinion.

Arbitration

Arbitration rules
In alignment with the principles of party autonomy and the desire to
cross jurisdictional lines, the requirements for the admissibility of party-
appointed expert evidence in international arbitration rules generally make
no reference to any rules of evidence and leave all discretion entirely to the
tribunal. The UN Commission on International Trade Law (UNCITRAL)
model rules illustrate this principle:
'The arbitral tribunal shall determine the admissibility, relevance,
materiality and weight of the evidence offered.' 64
The model rules include provisions for both party and tribunal-appointed
experts aswell the parties' right to object to any chosen expert's qualifications,
impartiality or independence.6 5 Similar admissibility provisions apply across
arbitration rules with only minor variances, such as the LCIA rules' explicit

59 Ibid.
60 D no 2004-1463, JUSC0420950D, Art 2.
61 C pr civ, s 263.
62 C pr civ, s 265.
63 Joseph Richani, 'Les Preuves dans l'arbitrage international' (Universit6 de Cergy
Pontoise, 2013), [575].
64 UNCITRAL Arbitration Rules ('UNCITRAL') (2013), Art 27(4).
65 Ibid Art 29.
TESTING THE RELIABILITY OF EXPERT EVIDENCE IN INTERNATIONAL ARBITRATION 179

reference to the tribunal's ability to apply any rules of evidence of its

choice.66 Another exception can be found with JAMS, the largest private
arbitration and mediation provider in the US, which stands out by naming
an admissibility standard in its rules. While offering the tribunal the usual
discretion in allowing or excluding evidence, the JAMS rules go so far as to
suggest the FRE as a choice of standard:
'Strict conformity to the rules of evidence is not required [...] The Arbitrator
shall consider evidence that he or she finds relevant and material to the
dispute, giving the evidence such weight as is appropriate. The Arbitratormay
be guided in that determination by principles contained in the FederalRules of
Evidence or any other applicable rules of evidence.' 67 [emphasis added]

Testing the admissibility of expert evidence in arbitration

InJuly 2014, a three-member tribunal of the Permanent Court of Arbitration
(PCA) in The Hague awarded damages in excess of$50 billion to the majority
shareholders of Yukos Oil Company against the Russian Federation. 68 The
award was 20 times larger than any previous arbitral award and represented
approximately 20 per cent of Russia's annual budget, 69 with the claimants'
costs for legal representation alone totalling approximately $79 million.7 0
The award was initially annulled by the District Court of The Hague in 2016
and later reinstated in 2020 on appeal, before being struck down again by
the Dutch Supreme Court in 2021 and the case remanded to the Court of
Appeal for further consideration.
71
In the Yukos case, the claimants' expert presented eight damage models,
notably comparable transactions, comparable companies, and discounted
cash flow (DCF). The DCF model was heavily criticised by the respondent's
expert for being based on speculative assumptions and containing multiple
errors in calculation.7 2 Having adjusted for the highlighted errors, the
claimants' valuation was virtually unchanged, leading the respondent to

66 LCIA Arbitration Rules (2014), Art 22(vi).

67 JAMS Comprehensive Arbitration Rules & Procedures (2014), Art 22(d).
68 Yukos UniversalLimited (Isle ofMan) v The Russian Federation,UNCITRAL, PCA Case No AA
227, Award (18 July 2014) (the ' Yukos case').
69 Ben Knowles, Khaled Moyeed and Nefeli Lamprou, 'The US$50 billion Yukos award
overturned - Enforcement becomes a game of Russian roulette' (Kluwer Arbitration
Blog, 13 May 2016): http://arbitrationblog.kluwerarbitration.com/2016/05/13/the-
us50-billion-yukos-award-overturned-enforcement-becomes-a-game-of-russian-roulette/
[accessed 22 August 2022].
70 Yukos UniversalLimited (Isle ofMan) v The Russian Federation,UNCITRAL, PCA Case No AA
227, Award (18 July 2014) 568-569.
71 Ibid [1782].
72 Ibid [1743].
180 DISPUTE RESOLUTION INTERNATIONAL Vol 16 No 2 October 2022

73
presume that the valuation tool was used to confirm an a priori conclusion.
The tribunal agreed that the DCF model had been influenced by a biased
outlook.74 The other valuation methods were also not deemed to be suitable
independent bases,75 barring the comparable companies method which
eventually became the starting point for the tribunal's assessment.7 6
Compare the Yukos case to that of Kipperman v Onex Corp," held in a
Georgia federal court and where the admissibility of none other than a DCF
valuation was challenged. The district court judge in this case held that
while the DCF was a widely-used and accepted model, 78 the expert's lack of
transparency and unjustified assumptions had rendered the methodology
in this case unreliable. 79 It therefore did not meet the standards of Rule
702, that is, the Daubert test, and was deemed inadmissible. 80
It is a feature of international arbitration that there is essentially no
system for the early dismissal of 'junkscience'; current rules and guidelines
focus on the experts' independence, with very little being said regarding
the quality of the testimony, which should in principle be the basis of
credibility.81 It is up to the opposing party to discredit the expert through,
for example, cross-examination or for the arbitrators to assign weight to the
evidence in their award. Combined with procedural mechanisms such as
joint expert statements, where opposing witnesses are invited pre-hearing
to draft a statement outlining their agreements and divergences, or witness
conferencing, where opposing experts are questioned simultaneously, this
is likely to be adequate for most arbitrations. In some cases, it may however
be more efficient for the tribunal to make an objective evaluation of the
reliability of the expert evidence before the testimony is considered. 82 A
defined framework for this evaluation that is agreed with the parties, such
as a modified form of Rule 702 /Daubert test, would moreover empower
tribunals to exclude evidence without the fear of due process challenges.
The additional time required in pre-arbitral admissibility hearings would
likely be too onerous for most arbitrations but could be a sensible option
on larger cases.

73 Ibid [1745].
74 Ibid [1785].
75 Ibid [1786].
76 Ibid [1787].
77 411 BR 805 (2009).
78 Ibid s II.A.3.iii (c) para 1.
79 Ibid s II.A.3.iii (c) para 10.
80 Ibid.
81 Hodgson (n 14) 458.
82 Ibid.
TESTING THE RELIABILITY OF EXPERT EVIDENCE IN INTERNATIONAL ARBITRATION 181

Professional and ethical standardisation

Arbitration institutions
There is generally very little guidance to be found directly with arbitration
institutions besides the International Chamber of Commerce (ICC),
which stands out from others by offering services directly aimed at the
procurement and management of expert witnesses. A party or the tribunal
may turn to the ICC's Expert Witness Centre to propose the name of one
or more experts active in the chosen field. Any proposal is contingent upon
the expert signing a statement of independence and neutrality in the eyes of
the party requesting the expert; 83 it does not, however, automatically address
the credibility of the expert in the eyes of the tribunal. Once the expert has
been proposed, the terms of engagement are negotiated directly between
the party and the expert without involvement of the ICC. Unless otherwise
agreed, the statement of independence is therefore limited to conflicts of
interest between both parties, not to the proceedings themselves. 84
If, on the other hand, the ICC is retained to administer the expert
proceedings, then the expert must remain impartial and independent during
the proceedings pursuant to the ICC's Expert Rules, unless the parties agree
otherwise. 85 The rules also grant the ICC the power to replace an expert if a
credible claim against his impartiality is made by one of the parties. 86

Professionaland industry organisations

In discussing oversight mechanisms in international arbitration, professional
and industry organisations come foremost into play as pre-emptive control
devices. Most professionals will join such associations at some point in their
careers and will typically be bound to achieve and maintain a certain level
of proficiency as dictated by their associations' rule. This provides, in the
first instance, reassurance of a professional's competence. The second
safeguard relates to the expert's reliability. Arbitration rules are usually
silent on the ethical duties of partisan expert witnesses. Some guidance
can be found in the IBA Rules and CIArb Protocol, but these are optional
measures that are not universally used in arbitration. In the absence of
these, it is the professional association rules which form the primary source

83 ICC Rules for the Proposal of Experts and Neutrals ('ICC Expert Proposal Rules') (2015),
Art 2, para 3.
84 Mark Kantor, 'A Code of Conduct for Party-Appointed Experts in International
Arbitration - Can One be Found?' (2010) 26(3) Arb Intl 323, 373-374.
85 ICC Rules for the Administration of Expert Proceedings, ('ICC Expert Administration
Rules') (2015), Art 4, para 1.
86 Ibid Art 4, para 5.
182 DISPUTE RESOLUTION INTERNATIONAL Vol 16 No 2 October 2022

of ethical regulation for their expert testimony.87 Given the pervasiveness of

partisan expert witnesses, particularly in common law jurisdictions, many of
these associations have expanded their codes of conduct to include direct
reference to forensic work.
One good example is the American Association of Neurological Surgeons
(AANS)'s code of ethics,88 which stands out by being one of the first in its
field to address forensic work in detail and has in fact become something
of a model for other associations. 89 Another interesting initiative is that of
the American Academy of Psychiatry and the Law (AAPL), which offers
a voluntary peer review system where members can elect to have their
testimony reviewed by their peers privately or publicly via recorded video at
the AAPL's annual meeting. 90 This last scheme is unfortunately less likely to
appeal to experts in arbitration due to the confidentiality of proceedings.
Given the part played by professional associations in establishing ethical
standards, there is clear value in having experts that are bound by their
associations' codes of conduct when operating in international arbitration.
The next question to consider, then, is whether such a system is enforceable.

Censure by professionalassociations
Since theynecessarily start as complaints against members for their testimony,
policing efforts by professional associations are inherently retrospective
devices. A complaint filed against a member with their professional
association over their conduct in arbitration proceedings would have to be
much more limited in fact unless the parties to the arbitration were to waive
confidentiality. Nevertheless, the ability to hold professionals accountable
to the ethical standards of their associations, however unlikely, is essential
in ensuring the effectiveness of association oversight.
While courts generally avoid interfering in the administrative matters
of associations, the effectiveness of professional sanctioning nonetheless
depends on a successful relationship with the local legal environment; that
is, whether punitive action by professional associations for expert witness
work is tolerated in the first place. In the US, the limits of this relationship
were tested in 2001 by Austin v American Association of Neurological Surgeons
(AANS). 91 Neurosurgeon Donald Austin was suspended for six months
by the AANS, a voluntary medical organisation, for testimony deemed
87 Kantor (n 84) 324.
88 AANS Code of Ethics (2016), available atwww.aans.org.
89 B Sonny Bal, 'The Expert Witness in Medical Malpractice Litigation' (2009) 467(2)
Clinical Orthopaedics and Related Research 383, 385.
90 Paul S Appelbaum, 'Policing Expert Testimony: The Role of Professional Organizations'
(2002) 53(4) Law & Psychiatry 389, 390.
91 F3d 967 (7th Cir 2001).
TESTING THE RELIABILITY OF EXPERT EVIDENCE IN INTERNATIONAL ARBITRATION 183

irresponsible on behalf of a patient in a medical malpractice lawsuit against

another fellow of the AANS. Dr Austin sued the AANS for violation of his
due process rights, arguing that it was against public policy for professional
associations to discipline their members over trial testimonies unless that
testimony was intentionally false. The federal district court in which the
case was filed disagreed and granted the AANS summary judgment, a ruling
which was later confirmed on appeal. In hindsight, it is not clear how Dr
Austin's testimony satisfied the applicable admissibility requirements 92 in
the first place; he had performed very few of the surgical procedures that
were being evaluated and could provide no medical literature to support his
opinion. 93 In perhaps an acknowledgement of the shortcomings of the model
ofjudges-as-gatekeepers, the court recognised the role played by professional
associations in identifying irresponsible testimony:
'It is no answer that judges can be trusted to keep out such testimony.
Judges are not experts in any field except law. Much escapes us, especially
in a highly technical field, such as neurosurgery. When a member of a
prestigious professional association makes representations not on their
face absurd, such as that a majority of neurosurgeons believe that a
particular type of mishap is invariably the result of surgical negligence,
the judge may have no basis for questioning the belief, even if the
defendant's expert testifies to the contrary. 94
The Austin ruling establishes the courts' support of the right of professional
organisations to discipline their members in the US. An English equivalent
can be found in the 2006 case Meadow v General Medical Council (GMC).95
Professor Sir Roy Meadow, a well-respected pediatrician, was the subject of
a complaint to the GMC concerning evidence he gave against Sally Clark at
the highly-publicised trial of the death of her two infant children. Following
a complaint of serious professional misconduct, the GMC struck Meadow
off the medical register. Meadow's appeal against the GMC's censure
eventually reached the Court of Appeals who, while holding that Meadow
was not guilty of serious professional misconduct, cemented the right of
professional bodies to discipline their members over their testimony.
The conclusion reached was similar to that of Austin case; namely, that
the oversight of expert testimony is a legitimate aspect of a professional
association's duty to safeguard the public interest, one which cannot be
superseded by a fear of discouraging testimony.96

92 Rule 702 of the Federal Rules of Evidence, ie, the Daubertstandard.

93 Bruce Patsner, 'The Physician as Expert Witness: Essential, But Who Regulates?' May 2008
Health Law Perspectives available at www.law.uh.edu/healthlaw/perspectives/2008/
(BP) %20experts.pdf [accessed 22 August 2022].
94 Austin (n 91), 253 F3d 967, para 11.
95 GeneralMedical Council v Meadow (2006) EWCA Civ 1390.
96 Ibid [34].
184 DISPUTE RESOLUTION INTERNATIONAL Vol 16 No 2 October 2022

The enforcement tools afforded to arbitrators are considerably weaker

than those of the courts described above. Arbitrators are more likely to
simply ignore testimony they consider not credible rather than invoke
the disciplinary powers of self-regulatory local associations. This may be
insufficient; irresponsible or overtly one-sided testimony can be difficult
to discern in highly technical fields, something which only affirms the
negative 'hired gun' image of partisan witnesses in arbitration. Given the
success of professional oversight in litigation, it is worth asking whether the
ethical framework of forensic testimony in international arbitration can be
reinforced to function just as effectively.

Reputation and transparency

In the court system of the common law world, party-appointed experts may
be swayed from excessively partisan behaviour by the reputational damage
which can be caused by misleading testimony, as well as the potential risk such
testimony could pose to any future forensic revenue stream.97 This mitigating
framework is muted in arbitration; information about expert bias which
would otherwise be revealed though previous hearings, rebuttal reports or
censure by the courts may not be available. 98 While tribunals may very well
ignore or give less weight to testimony that is obviously biased, these decisions
will likely remain confidential and not be revealed to future arbitrators or
parties. As a result, the potential reputational damage faced by an expert in
court is often mitigated by the confidentiality of arbitration proceedings.
At the request of one of the parties or the tribunal itself, the ICC's
Expert Witness Centre can propose the name of an expert from a database
of persons and technical institutions around the world. 99 The list itself is
however not made public. Nor is an expert's prior work in arbitration
easy to track down and evaluate due to the typical confidentiality of
proceedings. This results in a lack of transparency surrounding both
the retainment and evaluation of expert witnesses in arbitration. The
first issue could be addressed by the creation of a voluntary record of
experts operating in international arbitration. An analogous procedure
has already been in place at the ICC since 1 January 2016, when the ICC
started publishing the names and nationalities of arbitrators sitting in all
cases registered from that date onward, and was later expanded to include
the sector of industry as well as counsel representing the parties for all cases

97 Howard Rosen, 'How Useful are Party-appointed Experts in International Arbitration?'

(2014) 1(2) The Journal of Damages in International Arbitration 1, 7.
98 Matthew Swinehart, 'Reliability of Expert Evidence in International Disputes' (2017)
38(2) Mich Journal of Intl Law 287, 327.
99 ICC Expert Proposal Rules, Art 2, para 2.
TESTING THE RELIABILITY OF EXPERT EVIDENCE IN INTERNATIONAL ARBITRATION 185

registered after 1 January 2020.100 This was done in the interest of greater
transparency and without harming the privacy of arbitration by allowing
parties to opt-out of the disclosure. A similar system disclosing the names
of experts could conceivably be useful in offering some form of database
for pre-qualified, or at least tested, experts operating in international
arbitration. Once the experts are identified, the second issue, that of the
evaluation of expert witnesses' performance, could be tackled through
ongoing efforts to increase transparency in international arbitration. One
such initiative is the UNCITRAL Rules on Transparency in Treaty-based
Investor-State Arbitration (the 'Mauritius Convention'), which entered
into force on 18 October 2017, and provides public access to information
regarding treaty-based investor-state arbitration proceedings. 10 1
Another
is the recent partnership between the ICC and Jus Mundis, a Paris-based
legal tech start-up, to create a comprehensive search engine for all
publishable ICC awards.102 While the awards are anonymised to ensure no
personal data is published, neither the details of the arbitrators nor those
of the parties' counsel are redacted.
Increased transparency could likewise tie into a proposal by Howard
Rosen that arbitrators explicitly report in their awards on the role played
by experts and the helpfulness of their conduct. 1 3 Of course, such a
requirement to 'grade' experts is only meaningful if it is published for
prospective clients to see. Tracking arbitrators' review of experts' conduct,
particularly any instances of censure, in voluntary databases managed by
arbitral institutions would allow for such a feedback loop to be created
without compromising the privacy of arbitration. The success of such
initiatives is however reliant on the existence of a large enough pool of
willing participants. At the time of writing, the Mauritius Convention has
only been ratified by nine member states.104 Similarly and as of 1 April 2021,
ICC awards made in the first quarter of 2019 that would be eligible for
publication are all either confidential or subject to an objection by a party. 105

100ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the
ICC Rules of Arbitration, (2021) s IV(B).
101 United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New
York, 2014) (the 'Mauritius Convention on Transparency') (UNCITRAL) https://uncitral.
un.org/en/texts/arbitration/conventions/transparency [accessed 22 August 2022].
102 'ICC andJus Mundi launch partnership to publish ICC arbitral awards' (ICC, 1 April 2021),
https://iccwbo.org/media-wall/news-speeches/icc-and-jus-mundi-launch-partnership-to-
publish-icc-arbitral-awards/ [accessed 22 August 2022].
103 Rosen (n 97) 6.
104Status: United Nations Convention on Transparency in Treaty-based Investor-State
Arbitration (New York, 2014) (UNCITRAL) https://uncitral.un.org/en/texts/
arbitration/conventions/transparency/status [accessed 22 August 2022].
105ICC online (n 101).
186 DISPUTE RESOLUTION INTERNATIONAL Vol 16 No 2 October 2022

Judging from the publicity garnered by Drs Austin and Meadow, it is easy
to understand how reputational damage can act as a strong motivator for
professionals acting as expert witnesses. Yet one of arbitration's primary
appeals means that tribunals can currently make little use of this powerful
dissuasion tool.

An expert's code of conduct

In a 2010 article, Mark Kantor proposes binding expert witnesses operating
in international arbitration to a common code of conduct, one which could
be established regardless of whether the arbitration is subject to the IBA Rules
or to the CIArb Protocol. 10 6 Three core duties are at the heart of the code:
1. a duty of disclosure of any conflicts of interest with the parties, counsel,
or dispute, as well as compensation arrangements;
2. a duty to provide full information, whether supporting or adverse to the
expert's conclusions; and
3. a duty to assess the reasonableness of assumptions provided by counsel
or a party.1 7
The obligation towards reliability could be further widened by addressing
subject matter knowledge, such as in this example from the AANS forensic
testimony rules:
'The neurosurgical expert witness shall have sufficient knowledge of and
experience in the specific subject(s) of his or her written expert opinion
or sworn oral testimony to warrant designation as an expert.' 108
Arbitrators could establish the code of conduct in their initial procedural
order, or they could be integrated in the parties' instructions to experts if the
tribunal is given an active role in reviewing them. Once a code is established,
the next step is accountability, and the LCIA Arbitration Rules' firm approach
towards counsel offers a precedent for how this might be achieved:
'In the event of a complaint by one party against another party's legal
representative appearing by name before the Arbitral Tribunal (or
of such complaint by the Arbitral Tribunal upon its own initiative),
the Arbitral Tribunal may decide, after consulting the parties and
granting that legal representative a reasonable opportunity to answer
the complaint, whether or not the legal representative has violated the
general guidelines. If such violation is found by the Arbitral Tribunal, the
Arbitral Tribunal may order any or all of the following sanctions against
the legal representative: (i) a written reprimand; (ii) a written caution

106Kantor (n 84) 376.

107Ibid 375.
108AANS Rules for Neurosurgical Medical/Legal Expert Opinion Services, (2016), s B, Art 1.
TESTING THE RELIABILITY OF EXPERT EVIDENCE IN INTERNATIONAL ARBITRATION 187

as to future conduct in the arbitration; and (iii) any other measure

necessary to fulfil within the arbitration the general duties required of
the Arbitral Tribunal under Articles 14.4(i) and (ii). '109
A code of conduct ultimately acknowledges that neither institutional rules
nor professional standards are uniform. Ethical standards of associations
operating in common law countries are more likely to address the conduct
of party-appointed witnesses than those in civil law jurisdictions, which
have no reason to differentiate between the general duties of an expert
and those of a partisan expert.110 But even when limiting oneself to the
common law world, distinctions can nevertheless be observed between
rules that broadly encompass independence and impartiality and those
that, in addition, explicitly address issues of reliability. No single approach
is without criticism; rather, it is the plurality of different institutional and
association rules that is problematic in international dispute resolution as
it creates an uneven basis for the ethical conduct of experts.
The regulatory framework surrounding the admissibility and ethical
regulation of expert evidence in litigation arose out of a specific set of
concerns regarding its reliability. These are mirrored in international
arbitration without the benefit of litigation's existing safeguards, however
imperfect. Assuming the trend towards party-appointed experts continues,
then ensuring a consistent mechanism for controlling not only the
independence and skill of expert witnesses but also the relevance and
quality of the evidence itself will be crucial in maintaining the credibility of
the partisan expert model in international arbitration.

109LCIA Arbitration Rules, (2014), Art 18, para 6.

110Kantor (n 84) 325.