THE EXPERT WITNESS

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

24 July 2021

Arbitration #139

Arbitrators are often required to determine issues/disputes which may be scientific, technological or highly specialised. These may require an explanation of technical jargon, methodology, professional standards, custom and practice and national + international recognised norms + models. What is the expected professional standard and has the expert failed to meet that standard?
 
Let’s bear in mind three points. First, the expert is not the arbitrator and does not exercise the function of an arbitrator. Second, expert evidence, when all is said and done, is just an opinion and third, an arbitrator can reject the opinion. Experts can, and sometimes do, help but the decision is made by you, the arbitrator.
 
So don’t be in awe. Don’t read the qualifications and quake. Do be respectful and acknowledge the expert’s expertise + experience but don’t be cowed. Don’t flinch or fawn. Be yourself. You have been appointed because you can do your job and you are the boss. I think I have said this before!
 
So, consider the expert’s evidence in a reasoned and detached manner. Are the expert’s qualifications relevant to the facts in issue? Is the expert’s experience relevant to the facts in issue? And do bear in mind that qualifications + experience are two different issues.
 
Another point – has the expert’s evidence been given with true impartiality and objectivity? And another question – where there is a dispute between two experts, is it genuine or have one or both gone “partisan”. It happens. Some experts are sturdily independent – others are flakey + tend to one-sidedness. And then the big question for you – what weight should you attach to the expert evidence?
 
So the questions you need to ask yourself;-
Is the expert neutral? Is the expert reliable? Is the expert’s evidence relevant and material? 

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