A Code of Conduct for Party-Appointed Experts in International Arbitration - Can One be Found?

Abstract

THE UNCITRAL Model Law on International Commercial Arbitration, like other arbitration laws and rules, imposes ethical duties on arbitrators, most obviously the obligations of impartiality and independence and the related duty of disclosure. Unlike the case for arbitrators, though, the Model Law and other arbitration laws and rules are silent concerning whether party-appointed expert witnesses are subject to ethical duties such as impartiality and objectivity. What ethical standards, if any, should an arbitrator apply to the duties of an expert witness testifying before an international arbitral tribunal? Surprisingly, as explained further in this article, the source for those standards is far more likely to lie within the experts’ own professions rather than within international arbitration principles. Moreover, arbitrators can establish practical parameters for the conduct of party-appointed experts such as (1) a duty to disclose material relationships; (2) a duty to include in any written and oral evidence all material information, whether supportive or adverse; and (3) a duty to professionally assess the reasonableness of assumptions on which that expert relies in the expert evidence. Another creative proposal is the ‘Sachs Protocol’. Dr Klaus Sachs recently proposed at the 2010 ICCA annual conference in Rio de Janeiro that the opposing parties in an arbitration could propose lists of possible experts. The tribunal would then select one expert from each list to serve on an ‘expert team’. That team would be appointed by and responsible solely to the tribunal and compensated out of the common arbitration deposits.