|What is the first rule of fight club? “You do not talk about fight club.” That’s actually the second rule, too. When it comes to the use of experts in international arbitration, there are no rules, really. Procedures or guidelines for discovery, disclosure, and deposition of experts in this tribunal simply do not exist. Like fight club, not many people are talking about it, so, let’s talk about it. What are the best rules for the use of experts in international arbitration? Come out swinging. Land your cross. And stay light on your feet.
We don’t mean in the arbitration hearing itself, although that may be a good tactic. We mean with respect to the use of experts in the arbitration. If you’re in international arbitration, it is very likely the nature of your action is such that it is highly complex and requires, or at least would benefit from, the presentation of expert witness testimony on the matter. While some arbitration agencies (the American Arbitration Association, or AAA, and its International Centre for Dispute Resolution, or ICDR, for example) have issued rules relating to selection of an expert by the tribunal, few speak to the use of traditional consulting experts as we are more typically used to offering up in litigation. Without well-defined rules like those outlined in Fed. R. Civ. P. 26, which state the specific timeframe in which you must identify your experts, what you must disclose, (
opinions, methodologies, and bases supporting those opinions, as well as the opportunity to depose each other’s experts), use of consulting experts in international arbitration can feel like a minefield to navigate. This is precisely why the Fight Club had rules! Only two guys to a fight. One fight at a time.
So come out swinging by creating your own rules, at the outset, in the arbitration agreement. If you are able, contract to the very terms you would like when it comes to expert discovery right out of the gate. Suggest the other party agree with your client to adopt the International Bar Association’s “Taking of Evidence in International Arbitration” rules (2010) or agree on ad hoc procedures outlining the specific parameters for disclosure and use of expert witness testimony in the arbitration. Think about the expert logistics you would like and hit the other side with them upfront:
- Do you want both sides to file reports?
- Would you like to exchange expert interrogatories?
- Do you want the right to take an expert discovery deposition?
Considering the relative complexity and expense of matters that generally find their way to international arbitration, time spent negotiating important and effective discovery terms like these, on the front end in your contract, would likely be a wise investment. Typically, if the parties have explicitly agreed to it, the tribunal will accept and enforce the arrangement, so get what you want right out of the gate.
|Cross-examination of experts in international arbitration can be a hot bed, or maybe we should say a hot tub, of inquisition, timing, and strategy. Some tribunals exercise what is known as “hot tubbing,” a simultaneous conference of all experts where counsel, the tribunal, and even the experts themselves can ask questions. That’s a scary thought. It’s like the Wild West and everyone is slinging. So, don’t let anyone beat you to the punch. The minute you see an opportunity to get a nice cross in, do. In trial tactics, this is often called “framing the issue” where your inquiry or line of questioning, because it comes first, puts your theme and your interpretation of the evidence in the forefront of the tribunal’s mind. If the rules are unpredictable, then don’t rely on them. Jump in the moment you see the chance to land your first cross and get your mantra for the case planted in the fact-finders’ minds first.
Cross-examination of experts in international arbitration can be a hot tub of inquisition, timing, and strategy.
|We say all of this because, as many of you know, in international arbitration the reality is there are often no fixed rules. It is intended as an atmosphere of cooperation and flexible presentation of evidence, not nearly as confrontational as litigation, with generous opportunities on both sides to present and question evidence. For that reason, you should remain flexible. Be ready if the tribunal limits your direct examination, allows the other side to bring in a last-minute witness, plays fast and loose with the rules of evidence. Good forethought and planning with early clarification of expert disclosures and a pre-planned, practiced cross at the ready can be helpful, but as with any arbitration, you must immediately hop to the other foot if plans fall through. Otherwise, you’ll find yourself flat-footed, stiff, and vulnerable for a knockout. Float like a butterfly, but when it comes to your experts, be as fast and forward as you can be.
Float like a butterfly, but when it comes to your experts, be as fast and forward as you can be.