Expert Witnesses in International Commercial Arbitration
In international arbitration, a party may submit evidence in different categories. Opinions of expert witnesses forms one of these categories. Expert opinions are mostly relied upon in complex cases that require special knowledge, such as construction, oil and gas, and insurance disputes, or in cases where damages quantum needs to be determined.
Expert witnesses can be appointed both by the parties and the arbitral tribunals. Most of the rules of the institutions allow tribunals to appoint expert witnesses. In practice, it is common for the parties to appoint their own experts and present expert report. In cases where the tribunal chooses to appoint an expert, it should set the boundaries of the expert’s duty, and be careful not to delegate its own responsibilities to the expert. In some cases, the tribunal requests the parties to submit a list of experts over whom they can make a determination - this is most common in damages calculation.
Common and civil law traditions have different views as to expert evidence. Civil law practitioners are more suspicious when it comes to expert witnesses. This arises from the fact that in civil law traditions, the ordinary practice is for the court to appoint an independent expert.
Despite the different approaches in these two traditions, expert witnesses, today, depend on the subject matter of the dispute and specific circumstances, is considered to be a useful tool for both the parties and the tribunals.
The Recent Philip Morris v. Uruguay Decision
The Philip Morris v. Uruguay case pending before the International Centre for Settlement of Investment Disputes (“ICSID”) has been recently decided in favor of Uruguay, the Respondent. This lawsuit, filed by Philip Morris, was decided by the arbitral tribunal that was constituted by Piero Bernardini (Chairman), Gary Born (co-arbitrator appointed by the Claimant), and James Crawford (co-arbitrator appointed by the Respondent), on July 8, 2016.
This case is important, not only because it represents the first time that a tobacco company sued a sovereign state before an international forum, but also because it concerns very important issues, such as the limits of the regulations setting forth restrictions in the tobacco industry.
The relevant decision shall be analyzed in this article.
Recent Decision of the Court of Cassation on the Forfeiture of the Right to Submit Evidence When the Respondent Fails to Submit its Statement of Reply
In its recent decision, the General Assembly of Civil Chambers, the Court of Cassation (“GACC”) has analyzed the possibility to submit evidence for a respondent who failed to submit its statement of reply, and a very important decision was granted. In the decision dated 20.04.2016 and numbered 2014/2-695 E., 2016/522 K. of the GACC, it has been decided that the request to submit evidence made by a respondent who failed to submit its statement of reply within the prescribed period cannot be granted. The relevant decision of the GACC of the Court of Cassation is analyzed in this article.
