UK: ICC Launches New 2015 Expert Rules

Last Updated: 24 April 2015
Article by Nicholas Gould

With thanks to Robbie McCrea of Fenwick Elliott for his assistance in preparing this paper.

The ICC has launched a new set of Expert Rules. The ICC's prior set of Rules for expertise came into force on 1 January 2003. After careful consultation the 2003 Rules for Expertise have been updated and amended, resulting in three sets of rules for the appointment and administration of Experts and Neutrals, which came into effect on 1 February 2015 (the Rules).

The Rules have been designed to enhance the full-spectrum service offered by the ICC in relation to expertise in ADR and streamline the process, while still retaining the established format of the 2003 Rules. The Rules therefore provide three complementary sets of rules, one for each of the distinct services provided by the ICC, namely:

  1. The identification and proposal of Experts or Neutrals;
  2. The identification and appointment of Experts or Neutrals; and
  3. The administration of expert proceedings.

The scope and purpose of the three rules are set out in each case in an explanatory preamble, which includes examples of when those services might be useful. In addition, parties can seek guidance and assistance from the ICC International Centre for ADR (the "Centre"), which administers the Rules, and from the ICC Standing Committee which provides a facilitative role in relation to each of the three services.

The new Rules

The Rules contemplate a broader scope of service for Experts than their predecessor. In particular, the Rules recognise that Experts with particular knowledge in technical, legal, financial and other fields may well be used in a variety of situations, from obtaining an expert opinion in the ordinary course of business, to international commercial arbitrations.

In addition, the Rules provide for the appointment of Neutrals, who are persons who might not have expertise in the technical subject matter of the dispute, but have other forms of expertise such as mediation, conciliation or legal training, making them suitable to assist parties to resolve differences or disputes.

There are also a number of amendments and additions designed to streamline the process and enhance the service. For instance, there is now an express provision in the administration rules that the parties and expert "shall make every effort to conduct the expert proceedings in an expeditious and cost-effective manner..."

Further, parties are now required to ensure that any request for a proposal, appointment, or administration is accompanied by detailed information so as to better inform the Centre when providing its services, such as proposing and appointing an appropriate Expert or Neutral, and to allow potential conflicts of interest to be identified at an early stage. In respect of this, the ICC is in a unique position as its network of 90 national committees around the world provides the ICC with access to a network of Experts and Neutrals in a wide range of fields internationally.

Three distinct services

Identification and proposal of Experts and Neutrals

Any person may ask the Centre to propose one or more Experts or Neutrals. The person requesting a proposal should provide detailed information about the type of work required, the scope of appointment, language, and location; the ICC will use this information to propose an Expert with qualifications that best match the stated criteria.

Before making a proposal, the ICC will require the Expert to sign a statement of acceptance, availability, impartiality, and independence, and disclose any facts or circumstances that might call his or her independence into question.

Appointment of Experts or Neutrals

The ICC may appoint an Expert where the parties have agreed that an Expert shall be appointed and that the Centre shall be the appointing authority, or otherwise where the Centre is satisfied that there is sufficient basis for appointing an Expert.

The requesting party must provide the same information as a request for a proposal, but must also include a copy of the parties' agreement or other foundation for the basis of the request. The ICC will only proceed to appoint an Expert once it is satisfied that both parties have given it the requisite authority to do so, or otherwise where it is satisfied that there is sufficient basis for appointing an Expert or Neutral.

Administration of expert proceedings

Either party may submit a request to the Centre to assist in the administration of expert proceedings, which should also include key details such as: a description of the dispute, the field of activity of the Expert to be appointed, any desired/undesired attributes of the Expert, and the anticipated scope of work to be carried out by the Expert.

The Centre will only process a request where it is based upon an agreement by the parties for the administration of expert proceedings, or if the Centre is otherwise satisfied that there is sufficient basis for administering expert proceedings.

By agreeing to appoint an Expert under the Rules, and to have the proceedings administered by the Centre, the parties will be bound by the following:

  1. Non-participation by either party will not deprive the Expert of the power to make findings and render a report.
  2. The parties agree to provide documents and facilitate the implementation of the Expert's "mission".

Once an Expert is appointed it must determine its "mission", in consultation with the parties. The Expert's mission sets out the scope of issues to be investigated and the procedure for doing so. This requires the Expert to take charge of the proceedings, identify the issues, set out a procedure and timetable, and then work to it. Modifications to the issues or procedures must be agreed with the parties, while adjustments to the timetable must be communicated to the parties and the Centre.

The Expert will proceed to produce a written report setting out its findings. The report must include reasons, and the parties must be given the opportunity to be heard and/or make written submissions before the report is finalised. In addition, the Centre must review and approve the Expert report, and it may require modifications to be made, before it is finalised.

All of the information given to the Expert by the Centre or disclosed during the course of the proceedings is to be treated as confidential. However, the Expert's report will be admissible in any judicial or arbitral proceedings between the same parties, unless both parties agree otherwise.

Other rules compared

There are a number of other established ADR bodies that provide for the appointment of experts, for instance the UNCITRAL Arbitration Rules, the AAA/ICDR International Arbitration Rules, and the LCIA Rules. However, none of these rules provide procedures for dealing with expert evidence, nor do they provide support services for proposing, appointing, or administering expert proceedings.

Practical considerations

While the use of experts and neutrals in relation to ADR is by no means new, it is a quickly growing trend. The Rules have responded to this trend by providing an expanded and enhanced service for the use of Experts and Neutrals in relation to ADR.

However, there are still a number of practical considerations that should be carefully considered by the parties when using the Rules, and in particular for international arbitration. These include: proper identification of issue(s) and procedures for developing the particular questions of the experts, timetabling, joint meetings of experts, joint expert reports on areas of agreement and disagreement, limiting and focusing the expert report, and the potential for witness conferencing at hearing.

International Quarterly is produced quartely by Fenwick Elliott LLP, the leading specialist construction law firm in the UK, working with clients in the building, engineering and energy sectors throughout the world.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nicholas Gould
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.