Parties' engagement with experts in international litigation

Abstract

Experts are playing a role of increasing importance in both inter-State and investor- State disputes. Given the rising number of fact-intensive technical or scientific disputes in the inter-State context and the prevalence of expert evidence on a range of issues in investor-State arbitration, it is likely that expert evidence will play an increasingly central and even pivotal role in international litigation. In the light of this development, this article provides an outline of the issues relating to the engagement that takes place between parties to a proceeding and experts giving evidence in that proceeding. Drawing upon the usual practice in relation to both party-appointed and Court- or tribunal-appointed experts, the author explains how a party and its counsel engage with experts from the beginning of their engagement through to the expert giving evidence at an oral hearing. The author also identifies safeguards and limitations to the possibility that an expert's views might be unduly influenced by a party or its counsel. In practice, the effectiveness of these safeguards will ultimately depend on the ethical standards observed by parties, their counsel, and the experts themselves.