THE ADVOCATE V O L . 7 5 P A R T 4 J U L Y 2 0 1 7 555
A VIEW FROM
In this issue we bring you two arbitration-related topics: (1) Expert or Arbitrator?
and (2) Security for Costs in Arbitration
EXPERT OR ARBITRATOR?
By Carl Nilsen*
The use of experts has become a familiar feature of the dispute resolution
landscape. In arbitration, for example, experts will typically be asked to provide
an opinion, based on their expertise, for the purpose of providing
objective evidence to assist the arbitrator. But they may also find themselves
being asked to resolve the matter themselves. How should they
respond to such a request, and how can the parties and their counsel ensure
this process runs as smoothly as they would wish?
An understanding of the difference between the two functions is key.
Arbitrators consider evidence such as expert opinions and reach a conclusion
as to the reliability and relevance of that evidence and the degree to
which it can inform their decision. Arbitrators rely solely on the evidence
presented to them by the parties. Experts choose and gather their own evidence;
they then use this and their experience to express an opinion on the
disputed matter or some aspect of it based on instructions provided by
counsel. An arbitrator’s decision is therefore reached in a very different way
from the more investigative process followed by the expert.
When experts are asked to assist the parties in resolving issues within
their field of expertise it is usually to avoid what might be seen as a more
daunting arbitration process. Under these circumstances the lines between
the roles of arbitrator and expert are in danger of becoming blurred. Experienced
professionals acting as arbitrators will understand the distinction
well and will avoid inserting their own experience or knowledge into the
* Carl Nilsen, AACI, P.App., has very considerable experience in providing expert evidence before the courts, arbitral tribunals
and administrative tribunals, and has frequently served as an arbitrator.