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There is a risk attached to the use of experts in the service of
the Tribunal. The expert, the person experienced in the business or
techniques of the dispute, can start a cold breeze of logic and
common sense blowing through the dusty rooms of the law.
Involve
an expert and you involve someone to whom the truth and the facts are
more important than the tactics and games. More seriously, you
involve someone to whom justice and fairness are more important than
the esoteric details of positive law. Someone whose frustration, at
the obfuscation found in much modern legal practice, sometimes may
result in steps towards the truth being taken much more quickly than
billing practice normally would permit.
My lawyer friends
should be warned that, by bringing an expert into the service of the
tribunal, whether as a member of a tribunal, as a sole arbitrator or
as the tribunal's own expert, they have a tiger by the tail.
Let
me recapitulate briefly: I suggest the characteristics of an expert,
and for this purpose I mean an expert in fields other than law, to
include
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knowledge and experience of his or
her field - an expert knows what he or she is talking about;
-
the skills of logic and
commonsense;
-
an ordinary man's, or woman's,
sense of justice and fairness;
-
skills of communication and
exposition, at least related to the field of expertise and often
more broadly related - an expert knows how to express his or her
findings or opinions.
-
Disputing parties, seeking a way to resolve or determine their
dispute, may well look at those characteristics and think that they
are precisely what is required. That is right and that is, of course,
the original purpose, the raison d'être of commercial
arbitration, although a modern observer could be excused for thinking
otherwise.
That was how arbitration began in commerce, before
the modern structure of nation states became what it is today.
Merchants would choose one of their peers, preferably one whose
prestige and reputation put him out of the hurly burly of immediate
competition, and agree to accept his decision. He was the arbitrator-
knowledge and experience, logic and commonsense, sense of justice and
fairness, ability to communicate his findings. It was all that was
necessary. Now is not the time to discuss how the need for control by
the State has led to a corruption of the process. I have discussed
that elsewhere, and the move towards a globalization of trade
eventually may mean a return to the standards of the past, as trade
once again passes beyond the grasp of nation-states.
My
immediate point is that, far from being an exception to the arbitral
process, the use of an expert is the natural, the obvious way to
determine a private dispute in a specialist area of trade or
professional practice.
That is my starting point. Of course
there are trade disputes in which there is some obscure point of law;
there are others in which a suitably obscure point of law may be
invented. My essential proposition, however, is that most topics in
trade and commerce are best understood by people in trade or
commerce, experts in the field. That must be so, otherwise they would
not be able to trade successfully day-by-day, as obviously they do.
That is why the expert plays an essential role in the service
of the tribunal.
I will now turn to
the principal ways in which that service may be provided. In the
limited time available, I will deal with three categories.
First
I will touch upon the role of the expert as a sole arbitrator and the
ways in which, if necessary, additional legal support may be brought
into the room.
Secondly, I will discuss the expert as a
member of a plural tribunal, his or her relationship with others, and
the possibility of creating a "dream team" to deal with a
specific dispute.
Finally, I will look at the task of a
tribunal-appointed expert and the relationship between the expert and
the tribunal.
Before doing so, however, I would digress for a
moment to discuss the relationship between two fields of law. For
want of better definitions, I shall call them Positive Law and
Natural Law. Positive Law is what it is. Holmes once said, to an
attorney in his court, "This is a court of law, young man, not a
court of justice." A great jurist, leader of the American
Realist school of jurisprudence, whose definition of positive law is
perhaps the most exact that can be found, he was right. To paraphrase
something else he said, Law is no more and no less than the
prediction of what a court will decide in practice. I would not
presume to argue with that; it is unarguable.
As it happens,
although I teach in a Law School, I am an engineer. Engineering is
variously described as a useful art or the application of science.
The aim of engineers, and I quote the Institution of Civil Engineers
in London, is the harnessing of the great forces of Nature in the
service of mankind.
Please think about that for a moment. No
one is beyond the laws of nature. I and my colleagues serve the laws
of nature every day of our lives. If the bridge is not strong enough,
it falls.
Engineers know well the famous accident to the
bridge at Tacoma Narrows and it exemplified what I want to say.
Because of a peculiarity of the wind through the gorge, and the
design of the bridge - it was a suspension bridge - oscillations were
induced in it and became progressively more severe over a period,
eventually it broke and sent at least one abandoned vehicle down with
it. The incident led to changes in design to take account of the
effects of wind. It was not the first instance of a man-made bridge
failing in the wind. The Tay Bridge Disaster, in the nineteenth
century was another.
Now, there would have been time, once
the Tacoma Narrows Bridge started to oscillate, to apply to the court
for an emergency injunction to prevent it. I daresay that it would
have been easy to persuade the Judge of the public interest.
But,
and this is the point I wish to make, the injunction would not, could
not have been effective. The bridge would still fall. Canute
demonstrated to his courtiers that all his undoubted power could not
cause the tide to turn. Galileo admitted to his inquisitors that the
Earth did not move around the Sun. It was res judicata, but
nobody told the Earth, and still it moves. That is the nature of the
law I serve. Unforgiving, inflexible, certain (but only insofar as it
is correctly known). A hard mistress and not one whose rules may be
changed by statute, by fiat or by a determination of the court.
Natural Law.
And Natural Law governs both material and
immaterial matters. There are laws of Physics, Chemistry and
Mathematics, but there are also Laws of Aesthetics, of Logic, of
Morals and of Human Behaviour. We specialise, of course, and we can
learn more of some Natural Laws than we can of others, but none can
pick and choose which Natural Law to apply. It applies without our
intervention.
Now this may seem a little remote from
Commercial Arbitration, but it is not. The principles of the Law of
Obligations are essentially Natural Law principles. In Contract, they
spring from the logical consequences of the ability to communicate
ideas and wishes and, in particular, promises. In other areas,
tortious obligations, they spring from the twin principles of free
will, which makes us responsible for the consequences of our actions,
and our duty to one another, a necessary part of social existence.
And Arbitration, of course, is a creature of the promise. It has a
foundation in Natural Law. That is fundamental and inevitable.
International Arbitration is, by definition, universal; the Laws of
nation states, the only positive Laws, are not. I am not here
discussing state recognition, that is another matter altogether.
That digression has been to show you something of the
thinking of a non-lawyer and the context in which a non-lawyer may
approach the resolution of disputes. No one ignores positive Law, of
course, it governs our practical decision making. Nevertheless it is
not our starting point.
I will deal only briefly with the
expert as sole arbitrator. The advantages of trusting a dispute to
someone who understands the nature of the problem are self evident,
as is the moral strength of an agreement to abide by the judgement of
a peer in one's field of work. There are three aspects which need
attention. One is the need for such and expert arbitrator to acquire
the appropriate procedural skills, for which training is available.
Most senior professionals, in every sphere of activity, have
experience of managing meetings fairly. Another is the occasional
need for the arbitrator to seek legal advice, which has always been a
traditional right, although occasions for it are rare. The third is
the problem of transparency, which is overcome by the expert
arbitrator setting out, for the parties, such personal knowledge as
may be relevant, and inviting them to deal with it if they wish.
Expert arbitrators may be in a minority on the international scene
today, but there are several of them and there may well be a recovery
of numbers as training becomes more widely available.
The
advantage of at least one or two experts in a multiple tribunal is
also, I suggest, self evident. That is especially so in modern
international arbitration, where the party appointed arbitrators are
required to be neutral and not to act as a kind of quasi-advocate for
their appointers. Non-lawyers are not accustomed to advocacy and do
not have the contentious instincts of the professional advocate. That
makes them well suited to a neutral role.
I wish particularly
to alert you to the enormous opportunity which the parties have to
create an ideal tribunal for the problem they have to resolve. I have
called it the "dream team" approach. Imagine, if you will,
a build-operate-transfer project, to manufacture ethical
pharmaceuticals to be marketed in an area where only imported
products have been available. Now assume that disputes have arisen,
during construction, about the performance and profitability of the
plant.
What I suggest is that the parties and their lawyers
could put together a tribunal which comprised, say, a chemical
engineer, an expert on project finance and a lawyer familiar with the
country where the construction was taking place. Not only would those
men or women be able to deal with their respective fields. If given
the opportunity, they would create a collegiate team which would be
able to discuss issues from widely differing points of view, bringing
a synergy to the arbitral process. The whole would be greater than
the sum of its parts.
That is what I had in mind when I spoke
of the relationship between the members of a tribunal. It is a
collegiate relationship, between colleagues, not a relationship of
contentions. One distinguished commentator has suggested that the
most important step in an arbitration is taken when the arbitrators
have dinner the night before the first meeting.
I think that
the opportunity, in arbitration, to create tribunals in which
differing methods of thought interact in the interest of truth and
justice, is one of the most exciting features of modern
jurisprudence. It may be an exaggeration to suggest that experts
eventually will play a vital role in making justice open and
transparent, but I believe the possibility is there. It is why I
teach and it is why I came here. We may have seen the peak of the
closed legal approach of the nation-state, at least in commerce and
in civil litigation. Openness is the opportunity offered by the
twenty-first century and all the modern educated professions have to
play their part in it.
Now I turn to the service which the
expert may give as witness or investigator for the tribunal. I will
not deal with experts appointed as members of the legal teams of the
parties; others will discuss that role.
Various legislation
covers the appointment of a tribunal expert. The English Arbitration
Act of 1996 refers to advisors, assessors and experts, but does not
differentiate greatly between them. Distinctions between those roles
may be somewhat technical; Article 26 of the UNCITRAL Model Law(2)
refers only to experts and, I suggest, sets out the natural
requirements for the task. An expert or experts may be appointed - no
prescription as to the nature of the expert - and, unless the parties
agree otherwise, that expert must be available for examination. The
Model Law also imposes a duty of co-operation on the parties.
In
any reference, the decision as to whether or not to appoint an expert
is a decision of the tribunal. Although the parties have the right to
agree otherwise, the tribunal's discretion is complete, both as to
whether to appoint an expert and as to who the expert should be. In
practice, however, it often may make sense for the tribunal to invite
the parties to agree upon an expert.
The expert's role is
defined by the tribunal, in the light of the views of the parties.
Ideally, there should be precise terms of reference, which may take
the form of a series of questions. The expert can play a useful role
in suggesting additional questions and in drawing up the terms of
reference, but the final decision will be that of the tribunal(3).
The tribunal's expert is an extension of the power of the
tribunal to make enquiry. That was brought home to me by a
distinguished professor of law who described a mission which arose
for a tribunal of which he was chairman. The field of the dispute was
esoteric, and the tribunal could not find an expert in the field who
did not have connections with one or other of the parties. There were
documents to be examined and enquiries to make. Accordingly, the
tribunal appointed a gentleman, not from that field of business, but
from a generally similar discipline, to examine the documents, to
make the enquiries and to report to the tribunal. Almost an agent
de police judiciaire, you might think.
One method of
proceeding, which I have found successful, is for the parties to give
their reasoned answers to the questionnaire before the expert's
enquiries begin. This gives a structure to the enquiries. Then, the
first report is given for their comments and the final report may
incorporate the comments given by the parties. That may make
unnecessary the examination of the expert before the tribunal, but
the tribunal may wish to have the expert present to comment upon any
further evidence. Because the expert can be examined, he or she may
be relieved of the obligation to ensure that both parties are present
at any phase of the enquiry. That can save a great deal of time and
expense, but the expert must report upon anything he or she takes
into account. The principles of Natural Justice are not suspended for
the expert, only made a little more practical. Any basis for the
expert's opinion must be made known, and any documents made available
to the expert ordinarily should be available to the parties and the
tribunal. An exception may be made for trade secrets; the tribunal
may order some material to be shown only to the expert, who may then
refer to it in a way which protects the secret. It is a procedure
which requires care by both expert and tribunal.
There is
much more to be said about the expert in the service of the parties
and in the service of the tribunal. What I have said here has been
only an outline. There is a more extensive treatment on the author's
web site at <http://www.hartwell.pwp.blueyonder.co.uk/Paris.htm>
and I am always happy to answer questions and to discuss the
topic generally.
Eur Ing Professor Geoffrey M. Beresford Hartwell,
Cromwell House, 78 Manor Road,
Wallington, Surrey SM6 8RZ
United Kingdom
hartwell@blueyonder.co.uk
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