ICC Launches New 2015 Expert Rules

With thanks to Robbie McCrea of Fenwick Elliott for his assistance in preparing this paper.

The ICC has launched a new set of Expert Rules. The ICC’s prior set of Rules for Expertise came into force on 1 January 2003. After careful consultation the 2003 Rules for Expertise have been updated and amended, resulting in three sets of rules for the appointment and administration of Experts and Neutrals, which came into effect on 1 February 2015 (the Rules).

The Rules have been designed to enhance the full-spectrum service offered by the ICC in relation to expertise in ADR and streamline the process, while still retaining the established format of the 2003 Rules. The Rules therefore provide three complementary sets of rules, one for each of the distinct services provided by the ICC, namely:

1. The identification and proposal of Experts or Neutrals;
    
2. The identification and appointment of Experts or Neutrals; and
    
3. The administration of expert proceedings.

The scope and purpose of the three rules are set out in each case in an explanatory preamble, which includes examples of when those services might be useful. In addition, parties can seek guidance and assistance from the ICC International Centre for ADR (the “Centre”), which administers the Rules, and from the ICC Standing Committee which provides a facilitative role in relation to each of the three services.

The new Rules

The Rules contemplate a broader scope of service for Experts than their predecessor. In particular, the Rules recognise that Experts with particular knowledge in technical, legal, financial and other fields may well be used in a variety of situations, from obtaining an expert opinion in the ordinary course of business, to international commercial arbitrations.

In addition, the Rules provide for the appointment of Neutrals, who are persons who might not have expertise in the technical subject matter of the dispute, but have other forms of expertise such as mediation, conciliation or legal training, making them suitable to assist parties to resolve differences or disputes.

There are also a number of amendments and additions designed to streamline the process and enhance the service. For instance, there is now an express provision in the administration rules that the parties and expert “shall make every effort to conduct the expert proceedings in an expeditious and cost-effective manner…”

Further, parties are now required to ensure that any request for a proposal, appointment, or administration is accompanied by detailed information so as to better inform the Centre when providing its services, such as proposing and appointing an appropriate Expert or Neutral, and to allow potential conflicts of interest to be identified at an early stage. In respect of this, the ICC is in a unique position as its network of 90 national committees around the world provides the ICC with access to a network of Experts and Neutrals in a wide range of fields internationally.

Three distinct services

Identification and proposal of Experts and Neutrals

Any person may ask the Centre to propose one or more Experts or Neutrals. The person requesting a proposal should provide detailed information about the type of work required, the scope of appointment, language, and location; the ICC will use this information to propose an Expert with qualifications that best match the stated criteria.

Before making a proposal, the ICC will require the Expert to sign a statement of acceptance, availability, impartiality, and independence, and disclose any facts or circumstances that might call his or her independence into question.

Appointment of Experts or Neutrals

The ICC may appoint an Expert where the parties have agreed that an Expert shall be appointed and that the Centre shall be the appointing authority, or otherwise where the Centre is satisfied that there is sufficient basis for appointing an Expert.

The requesting party must provide the same information as a request for a proposal, but must also include a copy of the parties’ agreement or other foundation for the basis of the request. The ICC will only proceed to appoint an Expert once it is satisfied that both parties have given it the requisite authority to do so, or otherwise where it is satisfied that there is sufficient basis for appointing an Expert or Neutral.

Administration of expert proceedings

Either party may submit a request to the Centre to assist in the administration of expert proceedings, which should also include key details such as: a description of the dispute, the field of activity of the Expert to be appointed, any desired/undesired attributes of the Expert, and the anticipated scope of work to be carried out by the Expert.

The Centre will only process a request where it is based upon an agreement by the parties for the administration of expert proceedings, or if the Centre is otherwise satisfied that there is sufficient basis for administering expert proceedings.

By agreeing to appoint an Expert under the Rules, and to have the proceedings administered by the Centre, the parties will be bound by the following:

1. Non-participation by either party will not deprive the Expert of the power to make findings and render a report.
    
2. The parties agree to provide documents and facilitate the implementation of the Expert’s “mission”.

Once an Expert is appointed it must determine its “mission”, in consultation with the parties. The Expert’s mission sets out the scope of issues to be investigated and the procedure for doing so. This requires the Expert to take charge of the proceedings, identify the issues, set out a procedure and timetable, and then work to it. Modifications to the issues or procedures must be agreed with the parties, while adjustments to the timetable must be communicated to the parties and the Centre.

The Expert will proceed to produce a written report setting out its findings. The report must include reasons, and the parties must be given the opportunity to be heard and/or make written submissions before the report is finalised. In addition, the Centre must review and approve the Expert report, and it may require modifications to be made, before it is finalised.

All of the information given to the Expert by the Centre or disclosed during the course of the proceedings is to be treated as confidential. However, the Expert’s report will be admissible in any judicial or arbitral proceedings between the same parties, unless both parties agree otherwise.

Other rules compared

There are a number of other established ADR bodies that provide for the appointment of experts, for instance the UNCITRAL Arbitration Rules, the AAA/ICDR International Arbitration Rules, and the LCIA Rules. However, none of these rules provide procedures for dealing with expert evidence, nor do they provide support services for proposing, appointing, or administering expert proceedings.

Practical considerations

While the use of experts and neutrals in relation to ADR is by no means new, it is a quickly growing trend. The Rules have responded to this trend by providing an expanded and enhanced service for the use of Experts and Neutrals in relation to ADR.

However, there are still a number of practical considerations that should be carefully considered by the parties when using the Rules, and in particular for international arbitration. These include: proper identification of issue(s) and procedures for developing the particular questions of the experts, timetabling, joint meetings of experts, joint expert reports on areas of agreement and disagreement, limiting and focusing the expert report, and the potential for witness conferencing at hearing.

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