Appointment of experts by arbitral tribunal

Article 26 (Article 26) of the UNCITRAL Model Law on International Commercial Arbitration (Model Law) empowers an arbitral tribunal (Tribunal) to appoint its own expert in a dispute.^[1]  The expert’s role is to create a report and provide oral testimony.  While parties may appoint their own experts, doing so can contravene principles of impartiality and fairness.  Australia has adopted this framework closely, with provisions from Article 26 reflected in both State and Commonwealth legislation.  The integration of Article 26 within Australia has a significant impact on parties to an arbitration procedure as it governs how experts are appointed and how parties can scrutinise expert opinion.  This article will discuss the application and purpose of Article 26, along with its relevance to and integration within Australian law.

What is Article 26 of the Model Law?

Created by the United Nations Commission on International Trade Law (UNCITRAL), the Model Law provides a suggested framework for countries to adopt when creating arbitration-specific legislation, whether in a domestic or international context.  Article 26 of the Model Law provides a framework guiding the fair appointment of experts by a Tribunal, stating that it:

• “may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; and
• may require a party to give the expert any relevant information or to produce or to provide access to, any relevant documents, goods or other property for his inspection.“^[2]

Article 26(2) also outlines that if a party requests, or if the Tribunal considers it necessary, an expert may participate in a hearing where the parties can put questions to the expert and present expert witnesses to testify on the points in issue.^[3]  This ensures accountability and transparency in the appointment of experts, providing parties with control and autonomy.

How has Article 26 been implemented within Australia and Queensland?

Australia has implemented Article 16 into legislation at both State and Commonwealth levels.  Section 16 of the International Arbitration Act 1974 (Cth) provides that the UNCITRAL Model Law has the force of law in Australia for international arbitration.^[4]   Therefore, anything stated within Article 26 will apply for international arbitration within Australia’s jurisdiction.  In Queensland, section 26 of the Commercial Arbitration Act 2013 (Qld) mirrors Article 26 almost exactly, but in a domestic commercial arbitration context.^[5]  It is clear that the Model Law has been closely relied upon in the development of Australia’s arbitration legislation.  The use of Tribunal-appointed experts in Australia has been supported the Australian Centre for International Commercial Arbitration (ACICA).  Under the ACICA Arbitration Rules 2021, tribunals are encouraged to manage expert evidence efficiently.  In both State and Commonwealth Courts, procedural fairness is emphasised regarding expert selection, the disclosure of evidence, and providing parties with opportunities to cross-examine.

What is the purpose of Article 26?

The primary benefit of Article 26 is that it promotes fairness and integrity in arbitral proceedings.  It does so by:

• Reducing bias – tribunal-appointed experts reduce reliance on experts obtained by the parties, minimising the possibility of biased opinion.
• Ensuring clarity – the tribunal can clarify technical issues, reducing confusion caused by conflicting expert reports.
• Enhancing procedural fairness – parties may cross-examine tribunal-appointed experts.  Tribunal-appointed experts may corroborate or deny party-appointed expert evidence.
• Improving efficiency – in complex disputes, the use of a neutral expert can streamline proceedings and potentially reduce costs.
• Assisting the tribunal – the use of experts can clarify technical matters that are not usually understood by an ordinary individual, ensuring a thorough analysis of each case.

What are the advantages of using a Tribunal-appointed expert?

Expert witnesses are a crucial part of the arbitration process, providing specialised knowledge.^[6]  Tribunal-appointed experts under Article 26 and associated Australian legislation are typically used in disputes where there is a technical matter at hand, such as those involving:

• complex engineering claims;
• scientific or environmental assessments;
• financial valuations and forensic accounting; and
• intellectual property disputes.

While parties often engage their own experts, a tribunal-appointed expert can assist when competing views risk confusing the tribunal.  This approach can also provide a neutral party to assist in resolving contentious or technical issues.  Importantly, tribunal-appointed experts do not replace party-appointed experts.  Instead, they supplement expert evidence already submitted, helping tribunals form balanced, unbiased decisions.

Why is it important to understand the function of Article 26?

While Article 26 offers clear benefits, several challenges exist including that:

• parties may perceive tribunal-appointed experts as a loss of control or input;
• parties may be unsatisfied with the selected tribunal-appointed expert; and
• parties must be adequately informed of the expert’s role and given an opportunity to respond and cross-examine.

Because these challenges exist, it is important that parties are informed as early as possible about tribunal-appointed experts, ensuring transparency and procedural fairness.  The importance of consulting with an unbiased expert in ensuring success for both parties should be emphasised.  Given that Australia’s State and Commonwealth legislation closely follows Article 26, it is important to understand its application and purpose so that parties can be aware of their rights and the rights of the Tribunal in arbitration proceedings.

Links and further references

Legislation

Commercial Arbitration Act 2013 (Qld)

International Arbitration Act 1974 (Cth)

UNCITRAL Model Law on International Commercial Arbitration

Other links

Federal Court of Australia – Expert Evidence Practice Note (GPN-EXPT) (2016)

Further information about commercial arbitration and the appointment of experts

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Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

^[1] UNCITRAL Model Law on International Commercial Arbitration art 26.

^[2] UNCITRAL Model Law on International Commercial Arbitration art 26(1)(a)-(b).

^[3] UNCITRAL Model Law on International Commercial Arbitration art 26(2).

^[4] International Arbitration Act 1974 (Cth) s 16.

^[5] Commercial Arbitration Act 2013 (Qld) s 26.

^[6] Federal Court of Australia – Expert Evidence Practice Note (GPN-EXPT) (2016).

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