Arbitrator Consultants – Another Way to Deal with Technical or Commercial Challenges of Arbitrations

Abstract

International commercial arbitrations are often complex and of a technical nature. Ensuring that arbitral tribunals have, or acquire, the necessary technical or commercial know-how is a challenge - for the parties as well as for the arbitrators. The standard solutions (party- and/or court-appointed experts) are time-consuming, costly and often carry the risk of delegating decision-making powers to the experts. Another way to ensure a technically or commercially sound and enforceable award is through the use of a consultant to the arbitral tribunal ("Arbitrator Consultant"). This tool was recently field-tested and successfully implemented in a major international energy price review arbitration in which the authors were involved. An Arbitrator Consultant is neither an expert, nor an arbitrator. Rather, he is a special assistant providing technical or commercial expertise to the arbitral tribunal "upon demand". He advises the arbitrators on limited technical or commercial language and/or calculation questions. However, he does not prepare an expert report, nor is he subject to cross-examination by counsel. The Arbitrator Consultant is, with the approval of the parties, an assistant in the sense that he helps to "translate" the arbitrator's decision into the particular technical or commercial language of a contract, or vice versa.