The use of experts and neutrals in ADR is a growing trend. In response to this, the ICC launched a new set of Expert Rules (“the Rules“) in February 2015 that seek to expand and enhance its services in this area.
The Rules replace those that came into force in January 2003. They now comprise three sets of rules for the appointment and administration of experts and neutrals, with each set relating to a service the ICC offers. These services are:
- identifying and proposing experts or neutrals;
- identifying and appointing experts or neutrals; and
- administrating expert proceedings
Rationale for Change and Scope of Rules
The Rules have been designed to enhance the service offered by the ICC in relation to expertise in ADR and streamline the process. There is now an express provision requiring parties and the expert to make “every effort to conduct the expert proceedings in a expeditious and cost-effective manner”.
The Rules have also been drafted with a broader scope of service for experts in mind, evidenced by the recognition that experts may be used in a variety of situations where they have a particular field of expertise.
1. The identification and proposal of experts or neutrals
Any person may ask the ICC to propose one or more experts or neutrals. The Rules now require that the person requesting a proposal provides detailed information including the type of work required, language, location and the scope of appointment so that the ICC can propose an expert with qualifications that best matches that person’s need.
The expert chosen will then be required to sign a statement of acceptance, impartiality, availability, independence and to disclose any facts or circumstances that may challenge his or her independent status before the ICC can make its proposal.
2. The identification and appointment of experts or neutrals
Where both parties have agreed that an expert shall be appointed and either where they have agreed that the ICC can be the appointing authority or where the ICC is satisfied there is a sufficient basis for doing so, the ICC may appoint an expert.
The same information required under the proposal rules must be provided, together with proof that the parties are in agreement on the appointment.
3. The administration of expert proceedings
Either party can submit a request to have the ICC assist in the administration of expert proceedings and, similarly to the process in identification and appointment of experts, the ICC can only process this request where the parties are in agreement or there is sufficient basis for doing so.
When parties agree to appoint an expert and have their proceedings administered by the ICC under the Rules, the parties will be bound to the following provisions:
- Non-participation by either party will not deprive the expert of the power to make findings and produce a report; and
- The parties must provide documents and facilitate the implementation of the expert’s “mission”.
The expert’s “mission” is determined in consultation with the parties and sets out the scope of issues to be investigated, as well as the procedure the expert will follow when doing so. The expert is then required to take charge of proceedings once this “mission” is finalised, set out a timetable and procedure. The issues or procedures in the “mission” can only be modified subsequently with the agreement of the parties.
The expert is required to produce a written report setting out his or her findings and the reasons for them. The Rules require the parties to be given an opportunity to be heard and/or make written submissions and for the ICC to review, approve and modify the report (where appropriate) before it is finalised. Once finalised, the expert’s report will be admissible in any judicial or arbitral proceedings between the same parties, unless both parties agree otherwise. This is in contrast to the information given to the expert by the ICC or disclosed during the course of the proceedings, which is treated as confidential.