An Efficiency-Based Approach to Disclosing Expert Witnesses' Conflict of Interest in International Commercial Arbitration under English Law

Abstract

Disclosing conflict of interest by expert witnesses is an important feature of international commercial arbitration. Failure to disclose or untimely disclosure of conflict of interest by expert witnesses can adversely affect the arbitral process and spur parties to frustrate the enforcement of resulting awards. These ultimately undermine the efficacy of arbitration as a preferred means of resolving commercial disputes. Judicial precedents offer guidance on how courts may resolve conflicts because there is no requirement in English statutory arbitration laws for expert witnesses to issue declarations of independence or impartiality. The Arbitration Act 1996 refers to impartiality in the context of arbitral tribunals and the Act does not refer to independence. However, several "soft laws" which parties can adopt, refer to impartiality and independence. This article analyses issues that arise from expert witnesses' conflict of interest in England with comparative support where relevant. A major argument is that by adopting a proactive approach in disclosing potential conflicts of interest, expert witnesses can minimise courts' intervention in the arbitral process and promote efficiency. This approach is based on clarifying essential expectations that parties and arbitral tribunals should have of experts especially what amounts to an independent, unbiased, and objective approach.