19.08 The expert has the dual role of witness and expert in their field. As a witness, their role differs from that of an auditor, consultant, and, above all, party-appointed counsel. The auditor’s mission is to verify the company books and their opinion is a guarantee to third parties. Company investors and creditors feel secure in the knowledge that the accounts are accurate. The expert witness, in contrast, alerts the tribunal to any doubts that may exist regarding the accounting or financial situation of the company. They assist in the calculation of any losses or damages that may derive from any contractual agreement. Whereas the auditor attests the veracity of book entries, the expert witness’s role is to assist in the assessment of evidence.
19.09 The role of the expert also differs from that of the consultant. The consultant’s mission is to assist the employer in finding the solution most in line with their business strategy. That is why it is difficult to reconcile the presence of the consultant—who in some cases is virtually an integral part of the company—in the preparation of arbitration claims. Natural resources and construction companies, for example, are the major client base of international consulting firms. In many cases they are already present at the outset of the dispute advising on how to prevent or organize the strategy of a future arbitration. Then, once arbitration proceedings commence, they appear as expert witnesses in the field.
19.10 The expert’s role in arbitration proceedings is to testify and assist the tribunal—not to instruct it. It is all too common to see party-appointed experts taking a position that is far more radical even than counsel’s. The expert is obliged to tell the truth in accordance with their professional ethics. Expert opinions, consequently, are subject to party questioning (p. 194) to check the veracity of the line of argument and conclusions. It is also true, however, that where there are lawyers with an Anglo-Saxon background, there is a risk that the lawyer’s desire to shine may predominate. Sometimes the Anglo-Saxon lawyer seems to consider more the written record than the efficiency of the expert questioning. Further, if his client is present he may be thinking more of the client’s satisfaction than the probative value of the expert evidence.
19.11 The expert is a witness, but, in contrast to the legal framework for experts in court proceedings, in international arbitration they do not have to be independent of the parties. The majority of experts appearing before arbitral tribunals are employees or habitual sub-contractors of one of the parties. The reason for this is that nobody is more familiar than they are with the circumstances surrounding the matter at hand. They are obliged to give full disclosure before the tribunal and the other party of the nature of the special relationship. The object of expert evidence is to place all possible elements of evidence before the arbitral tribunal so that it may undertake its assessment of the case.
19.12 Accordingly, this begs the question of whether an expert witness can be challenged, either for their disclosures in and of themselves or for any connections that come to light that were not initially disclosed. I am of the opinion that they should not. The tribunal, when the time comes, will assess the possible lack of objectivity that the special relationship with the appointing party may have given rise to and whether this has conditioned the expert evidence in any way. The possible challenge of a tribunal-appointed expert may have other connotations and above all different consequences.
19.13 Expert evidence, when proposed by a party, must be credible, and when designated by the tribunal, must additionally be prudent. On this basis, it is a great mistake for the expert to adopt the stance of a ‘guru’ whose mission it is to instruct the tribunal, believing it to be composed of three jurists unequipped with a technical mindset. This does not only happen with technical matters, however. Examples proliferate in accounting or legal issues with the ‘Taliban’ or ‘fundamentalist’ approach to the interpretation of FIDIC contracts. The expert’s role is not to impose their criteria or to instruct the tribunal, but rather to assist its members in their assessment of the circumstances surrounding the litigation.