<<
>>

independence of the expert appointed structure of arbitration

At appointment of the expert as arbitration structure as one of key the question on its independence is. Unlike the expert-witness whose services are paid directly by the party, and the probative value of the report depends exclusively on its persuasiveness, the expert appointed structure of arbitration, entirely should answer the requirement about independence and impartiality.

For example, according to item 6.2 the expert appointed structure of arbitration Corrected to MAY, should present before appointment acceptance to structure of arbitration and the parties the description of the qualification and the statement for the independence of the parties, their legal advisers and arbitration structure.

In cases when between the expert-witness and the dispute party presence of any communication comes to light, such communication can lead only to reduction of probative value of its conclusion in the opinion of arbitration structure, and that not in all cases. However in a case with the expert appointed structure of arbitration, any defect in a question on independence can lead to refusal in its appointment or an exception of examination from among proofs. The specified expert promotes arbitration structure, instead of the parties, and for lack of its independence there are serious doubts in practical expediency of carrying out of examination at the initiative of arbitration structure as that [500], and the conclusion received from the expert, the tribunal appointed under the decision without requirement observance about independence, it is considered the incompetent evidence. The standard extended in similar situations - «above reasonable doubts» [501] will be the proving standard at an estimation of arguments about absence of independence of the expert in this case.

According to § 3.4.2 Practical guidances about use of the experts appointed structure of arbitration, legal advisers and the advisers, prepared by Royal institute of arbitrators, before appointment the expert should be interrogated about representation to structure of arbitration and the parties of the statement for own independence of the parties, and also to open the information on any available communications with the trial parties. Arbitrators should suggest to the parties to present objections concerning independence of the presented nominee of the expert.

At the moment there are no certificates which would allow to allocate criteria of independence of the expert not only in the international commercial arbitration, but also with reference to the state justice. However, in our opinion, these criteria can be partly borrowed from recommendatory documents of the international organisations or arbitration institutes, applicable to the decision of a question on independence and impartiality of arbitrators [502]. In this case those situations which can generate the proved doubts in independence and impartiality of the arbitrator, will similarly undermine trust in relation to the expert. It is necessary to notice, that from the expert all existing contacts between the expert and the party, passing before occurrence of a question on its appointment should come under to disclosing also. As it has been shown earlier, to disclosing come under not only party and expert communication, but also the arbitrator and the expert.

2.4.13.

<< | >>
A source: Grebelsky Alexander Vladimirovich. of the PROOF In the INTERNATIONAL COMMERCIAL ARBITRATION. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow,. 2017

More on topic independence of the expert appointed structure of arbitration:

  1. the expert appointed the party
  2. an order of appointment of the expert arbitration structure
  3. § 4.1. Remedial position of the expert and the expert in criminal, civil, arbitration and administrative legal proceedings
  4. a question on independence of the expert involved with the party
  5. §2. Formation of structure of arbitrators in arbitration ad hoc and institutsionnom arbitration
  6. § 3.3. Tap of arbitrators MKA, other changes in structure of arbitration and their legal effects in the most demanded arbitration centres of the international private-law practice
  7. Categories "expert" and "expert judgement" in civil procedure and the international commercial arbitration
  8. Chapter 3. Maintenance of independence and impartiality of arbitrators at a legal investigation in joint structure
  9. Chapter 2. Mechanisms of formation and change of structure of arbitrators as a guarantee of their independence and impartiality
  10. Development of structure, the maintenance, principles and the basic functions of the doctrine about judicial-expert activity
  11. §1. Distribution of powers in joint structure of arbitration
  12. adverse conclusions of structure of arbitration in favour of the party of the opponent
  13. Zyong Thi Thu Hyong. GUARANTEES of INDEPENDENCE And IMPARTIALITY of ARBITRATORS In the INTERNATIONAL COMMERCIAL ARBITRATION (on an example of the Russian Federation and Socialist Republic Vietnam). The dissertation on competition of a scientific degree of the master of laws. Voronezh, 0000 0000
  14. § 2. The punishments appointed conditionally
  15. 3.2.6. The independent reference of structure of arbitration in the state court behind assistance in reception of proofs
  16. strengthening of independence of members of contractual bodies under human rights and maintenance of the balanced structure of contractual bodies
  17. § 2. System and kinds of the administrative punishments appointed for fulfilment of customs offences.
  18. § 2. Concept of the expert. The rights and duties of the expert at