It is a facet of arbitration that it is a multi-disciplinary process. Arbitrators are selected for their knowledge and experience in the type of problem or dispute that has to be resolved. This may be architectural, engineering, accountancy, insolvency or any of the disciplines which currently prevail. However, in addition to being familiar with and knowledgeable in the particular discipline required, arbitrators must have the ability to determine the dispute that is put before them according to the law unless the parties decide otherwise. The law itself is a very specialised discipline and one, if it is to be administered properly, that requires considerable knowledge, experience and skill.

There are not a great number of solicitors or barristers who are also qualified and experienced arbitrators, most practising lawyers preferring to exercise their skills through the courts. However, many arbitrators have some knowledge of the law. They may have sat their dinners and become barristers or have taken a degree in law, but few will have actually had experience of the niceties of the law. Those that have, however, are ideally situated to be able to advise non-lawyer arbitrators on the legal aspects of arbitrations that they undertake. Similarly, lawyers who are appointed to arbitrate in disputes of a discipline with which they are unfamiliar should, and often do, seek the assistance of those experienced in that discipline.

Section 37 of The Arbitration Act 1996 is a useful little section that enables sole arbitrators (and indeed tribunals) to appoint their own adviser. Such an adviser is often a lawyer but can also be, for example, an insolvency practitioner, a geologist, a specialist engineer or a member of any other discipline that may be involved in the dispute in hand. The costs of such an expert are costs in the arbitration and usually form part of the arbitrator’s expenses. The amount of such expenses are subject to the same sanctions therefore as an arbitrator’s own costs are and are governed by sections 64(2) and 28 (2) of the Act.

This article looks at some advantages and disadvantages of the arbitrator appointing his own expert as opposed to allowing the parties to use their individual experts. It looks at the manner in which such experts are appointed, their involvement in the arbitration, and the relationship with the parties and the arbitrator. The main purpose of the article, however, is to highlight the fact that the arbitrator’s function is almost invariably a multi-disciplinary one and to stress that arbitrators should not be reluctant to call in their own expert when required. Frequently the costs of arbitrators calling in their own expert will be less than the joint costs of the parties appointing their experts and the arbitrator then having to decide which of the evidence of the two opposing experts he is going to accept (although of course this cannot always be avoided). I propose to look at the situation first from the arbitrator’s point of view, secondly from the parties’ point of view, and thirdly from the expert’s point of view.

A non-lawyer arbitrator is frequently faced with experienced lawyers, who have been appointed by the parties to represent them. Such lawyers will look at the issues and the procedures in the arbitration from a legal point of view, and all sorts of technical arguments, which may embrace the latest Court Rules or recently decided court cases, may be presented, leaving the arbitrator floundering and wondering which way to turn. He may have an approximate knowledge of the law, but it will be dangerous for him to apply this. He should call in a lawyer – either solicitor or barrister – to assist him. I know of one very experienced arbitrator/ engineer who will frequently call in a lawyer during the interim procedural matters, prior to the hearing, to advise on preparation, discovery and the like where there are technical conflicts between the parties. However, he invariably deals with the actual hearing of the case on his own. This is what he feels comfortable with, but many non-lawyer arbitrators may feel they require the assistance of an expert or independent lawyer at or after the hearing.

If the arbitrator decides that he wishes to have expert opinion, whether engineering, legal or whatever, he should first notify the parties of his proposal to exercise his powers under section 37. His decision to do so may be a response to an application by one of the parties to call an expert on behalf of that party or it may simply be of his own motion. He should advise the parties who he proposes to seek assistance from, how he proposes to do it and the purpose of his so doing. He should ask the parties for their observations, but he is not bound by their views even if they are jointly made. He has a right to call in an expert by statute unless the parties jointly agree otherwise. Sometimes it is prudent to allow the parties to select one of two or three experts that the arbitrator might be minded to choose. In other cases that could lead to further difficulties; each case turns on its own circumstances. His instructions to the expert should be clear and unambiguous and should be confined to dealing with the particular technical advice required. It is often advisable to copy such instructions to the parties so that they are aware of the expert’s terms of reference. Any advice or report that the arbitrator receives from the expert must, of course, be communicated to the parties, and each party must have a reasonable opportunity to comment before the arbitrator makes a determination based on it (section 37(b)).

If the arbitrator decides to appoint an expert under section 37, a single party cannot object, unless of course such a proposal is so unreasonable that it might amount to arbitral misconduct. If the parties are going to exclude the powers under this section, it stands to reason that they should do so promptly and as soon as the issues are defined. Neither party, it would appear, has the right to comment on the selection of the expert or on the aspect of the case that the arbitrator proposes to refer to him. However, it is good practice, in my view, that the arbitrator should invite them to do so. The parties may wish to call their own experts in addition, and there may be occasions when this is appropriate. However, the arbitrator has, subject to both parties’ agreement otherwise, the right to decide all procedural and evidential matters (see section 34), and he may take the view that parties wishing to call their own expert in addition should not be allowed to do so; or, more realistically, would not recover their costs of so doing.

At the end of the day the parties are going to have to pay for the expert’s fees so they should ask the arbitrator to ask the expert what his fees are likely to be. At this stage the expert may only be able to give an hourly charge-out rate, but experience has shown that it is important that a maximum charge should be indicated. I have recently been involved in a case where the arbitrator’?s expert charged twice as much as the total experts’ fees would have been if each party had called their own expert. Such a position is not helpful.

The expert may be requested not only to make a written report but also to attend the hearing. Sometimes he will have given a written report in advance; at other times he may simply attend the hearing to assist orally, as it proceeds. In either case the parties should have the opportunity to test the expert’s view. They should also remind the arbitrator, where necessary, that it is the arbitrator who has been appointed, not his expert, and that, particularly on matters of fact, it is the arbitrator’?s duty, not the expert’s, to make determinations.

As I have said, at the end of the day it is the parties who have to pay the expert’s fee. Experts sometimes send their fee notes to the arbitrator for passing on to the parties and sometimes send them to the parties direct. In my view, the former is the more appropriate method. The expert has no contractual relationship with the parties, and his fees should be addressed to the arbitrator who has retained him. Of course, under the provisions of his appointment the arbitrator can recover the expert’?s fees from the parties as expenses.

The parties are jointly and severally liable for the whole of the expert’s fees. If the expert’s fees are too high, what are the parties going to do about it? How will they deal with it? Just as they do not wish to upset the arbitrator, they may not wish to upset the expert by challenging his fees. They may well be influenced by what the expert’s advice is. If his opinion is in their favour, then they are less likely to challenge the fees in the expectation that the costs of the expert will fall to the other party. At what stage should they object to the amount of the fees if they regard them as too high?

This is a complex problem, but fortunately not one that frequently arises. The solution is, I think, for the parties to treat the expert’?s fees in the same way as the arbitrator’s fees. Under the provisions in sections 64 (2) and 28 (2) they can either challenge the amount in the courts, or they can pay the money into court under protest under section 56 of the Act to get any withheld award and leave it to the arbitrator and the expert to justify the fees.

The expert has a number of obligations when appointed by an arbitrator in arbitration proceedings. The first obligation is to declare whether there is any conflict of interest. The second is to confirm, or be assured, that the matter upon which he is being consulted is one which is within his experience, skill and knowledge. (There is frequently ignorance or misunderstanding about what areas of discipline a particular expert is qualified to cover.) Thirdly, he should adapt and follow the CPR Rules, or any other rules that apply to the arbitration, in making his report (although he is not obliged to unless the arbitration has incorporated the CPR rules or any other rules). Finally, he should closely observe the instructions that he receives from the arbitrator.

The expert should ensure that he has all the documents and information, whether directly from the parties or copied from the arbitrator, that he needs in order to give his opinion. This should include, at least, the pleadings, the parties’ statements, any submissions, and the hearing bundle, if one has been prepared. He should limit his report and advice to precisely the points referred to him and not stray into other issues he may have noticed from looking at the pleadings. He may have to make certain assumptions of fact in his report, in which case he should declare them. He will normally be provided with the parties’ written statements, but that evidence may change after examination or cross-examination. He would be advised, therefore, to say that his report is based on the facts as contained in the unchallenged written statements. It may alter after cross-examination.

The expert may not need to attend the hearing. It may be that a written report is sufficient. The expert may be, for example, a geologist from whom the arbitrator wants no more than a clear explanation of the precise issues to be determined. If the adviser is a lawyer, it may be that the arbitrator requires assistance in the drafting of an award or advice on costs or interest or suchlike. Costs, as we have seen, can be a complex aspect of arbitration and frequently give rise to queries. In addition, a number of arbitrators have asked me to advise, from time to time, on whether they should award interest where no application has been made by one of the parties at the hearing. Many difficult questions also sometimes arise following an application for security for costs – a very complicated field of law. Other examples of questions that occur concern the taking of evidence from witnesses abroad, or the weight to be put on evidence received in telephone conferences and the like. There are a myriad of such problems, all of which may have a legal impact beyond the knowledge of a non-practising lawyer.

If the expert attends the hearing, he should be careful in his participation. Normally he should not seek to cross-examine the parties or question them directly. This is the duty of the advocates and, when they have finished, the arbitrator. The expert’s opinion should be limited to the technical aspects of the case on which he is asked to advise and should not venture into legal issues. For example, an expert rating valuer is bound to be aware of the case law relating to valuations. Nevertheless, the impact or interpretation of such case law is not within his discipline. That is for the lawyer. He is there to advise on the application of such cases from his own professional point of view. If the arbitrator is a lawyer and the parties are represented by lawyers, he will be trespassing into a minefield, should he start giving an opinion on the impact of a case or perhaps its particular relevance to other cases.

Section 37 of the Act, empowering an arbitrator to call for an adviser or an expert, is an extremely useful provision. It can lead to a substantial saving of costs and time and will greatly assist in coming to a determination which is fair and just. With the assistance of an independent adviser or expert, the arbitrator will be in a better position to appreciate the technical aspects of the case with which he is not familiar. The section enables an arbitrator to take advice on a single point, or on a number of points, or to have the expert at the hearing. It is an extremely useful section and, in my view, arbitrators should not be shy to use it. They have everything to gain from it and nothing to lose.