Newsletter-21

213 ARBITRATION LAW facts and circumstances. It is generally accepted that an effective ex- pert has a solid reputation, significant knowledge of the subject matter, as well as being author of publications in that regard, has broad experi- ence in cases of similar subject matters in disputes, is independent, credible, professional, familiar with the cross-examination process, has solid communication skills, and is talented in explaining complex matters in simple and understandable language 2 . The second duty of the counsel is to prepare the expert. Following the appointment of the expert, the counsel will inform the expert as to the subject matter, and the issues over which his or her opinion is needed. The problem with this task is the counsel’s level of involve- ment in the process. In practice, due to the fact that the exchange of communication between the counsel and the expert are confidential, there is a risk that the expert report will end up reflecting the counsel’s voice, rather than the expert’s. There is some criticism that experts are “hired guns.” However, many practitioners believe that it is unlikely for the expert to risk his or her reputation and credibility and, there- fore, most of the expert reports tend to reflect the experts’ impartial opinions, without solely reflecting the counsel’s strong views. It is not hard for an experienced tribunal to understand whether an expert opinion is biased or not, especially when during cross- examination an expert who does not defend his or her own findings and opinions, the expert will portray an unreliable image. It is also suggested that witness conferencing or “hot-tubbing” is helpful to ob- tain unbiased, reliable information. Experts tend to be more accurate when they are challenged, together with another expert. Legal Experts Practitioners and arbitrators have differing opinions when legal experts are in question. In this respect, common and civil law tradi- tions have different understandings. In common law practice, foreign law is considered as a fact that needs to be proved; whereas, in civil 2 Pierre Bienvenu and Martin Valasek , “Witness statements and experts reports,” in R. Doak Bishop and Edward G. Kehoe, The Art of Advocacy in International Arbitration, Second Edition, Juris (2010), Chapter 10, p. 263 seq.