An Update on Ciarb's Expert Witness Evidence Project
We are delighted to give an update on ‘Maximising the Effectiveness of Party-Appointed Expert Witness Evidence in ADR’, a project started by Ciarb during 2024.
This project finds both its inspiration and momentum in the powerful themes explored by Sir Robin Knowles CBE during his recent Roebuck Lecture ‘Damages and Remedies – Responsibilities and Reputation’.
Sir Robin’s remarks highlighted critical challenges in the use of expert evidence in dispute resolution - challenges that lie not with the experts alone but with the users of that expert evidence. In particular, his call to action highlighted two core messages:
- It is the users of expert evidence who must proactively engage in addressing the shortcomings in current practice;
- Engaging with expert witnesses for the first time at the evidentiary hearing is unacceptably late in the process.
These points resonate deeply with the project’s purpose. From the outset, the working group recognised that expert evidence in international arbitration and ADR is often pivotal, if not determinative. Yet, its impact depends on how effectively it is obtained and then understood and used by the tribunal. The project echoes Sir Robin’s emphasis on shared responsibility - pointing out that improving the quality and clarity of expert witness input requires collaboration among all arbitration users: the parties, their counsel, and the tribunal.
In essence, the project stands as a practical response to the Roebuck Lecture’s call - to committing to improving how expert evidence is delivered, received, and ultimately, how it serves the cause of justice in ADR.
The working group, which is co-chaired by Michael Tonkin C.Arb FCIArb (Vice President of Ciarb) and Pamela McDonald MCIArb, comprises:
- Abdul Lateef-Jinadu FCIArb
- Timothy Cooke FCIArb
- Igor Corelj MCIArb and
- Domingos Refinetti FCIArb
To date, the working group has conducted numerous workshops across various jurisdictions, engaging a broad spectrum of practitioners on the role and effectiveness of expert evidence in ADR. This included a global webinar hosted by Ciarb, titled “Maximising the Effectiveness of Expert Witness Evidence in ADR” which brought together an international audience and enriched the discussion with diverse insights.
Drawing on the perspectives gathered through these sessions, Ciarb developed and launched a Global Survey structured around four key themes:
- Communication dynamics between expert witnesses, tribunals, and counsel;
- Timetables and the timing of expert involvement;
- Strategies to enhance the tribunal’s comprehension of expert evidence; and
- Issues arising during the hearing and post-hearing phases.
The next stage is to consider and debate the results of the survey. In order to do so, the working group has decided to form four subgroups, each considering one of the four themes. The subgroups, who will soon be announced, are from the following four regions:
- Americas; (subgroup 1)
- Europe and Africa; (subgroup 2)
- Middle East and North Africa; (subgroup 3)
- Asia Pacific. (subgroup 4)
Michael Tonkin C.Arb FCIArb comments, “It is fantastic to be part of such a worthwhile and informative initiative, one in which all practitioners with whom we have engaged are hugely supportive in encouraging positive “changed behaviour” in relation to expert evidence. The most expensive part of international arbitration is often expert evidence and so the opportunity to try and maximise the effectiveness of such evidence is being widely welcomed.
We have obtained so much helpful and thoughtful feedback from a variety of users of expert evidence. Importantly, our next stage is to give careful consideration of the feedback we have recieved and to debate this with peers across the globe, through the the introduction of our four working groups: Americas, Europe & Africa, Middle East and North Africa, and Asia Pacific.
At the conclusion of the next stages of our work, we are committed to offering something that will benefit the ADR community in a variety of ways.”
Pamela McDonald MCIArb comments, “The genesis of this initiative was the many common experiences Michael Tonkin and I shared regarding the use of experts in alternative dispute resolution (ADR); both from the expert’s perspective as well as counsels.
We concluded we mustn’t be alone in our desire for improvement, and there must be another, better way of getting results from independent experts in ADR. That has led to a significant consultation and discussion exercise, which has taken place over many months with members of the ADR community around the globe, including through online and in person events as well as the global survey.
This will culminate in the release of a consolidated paper highlighting principles and guidance that the discussions surfaced which we hope will maximise the effectiveness of ADR experts.
We are delighted at the level of engagement and enthusiasm the initiative has received, which seems also to validate the industry demand. We hope that all users of ADR including experts, counsel, arbitrators and clients, will find the guidance notes both useful and simple and practical to put into effect.”
