UK: Experts In International Dispute Resolution: "The ICC’s Rules For Expertise"

Last Updated: 18 January 2008
Article by Nicholas Gould

On 1 January 2008, Nicholas Gould became chairman of the Standing Committee of the ICC International Centre for Expertise for a three year period. In this article, he summarises the ICC's Rules for Expertise which came to force on 1 January 2003 ("the Rules").

The Rules recognise that experts with particular knowledge in technical, legal, financial and other fields may well be used in a variety of situations. One of those could of course be to compliment an international commercial arbitration. The Rules are however complimentary to three services provided by the ICC:

  1. The proposal of experts;
  2. The appointment of experts; and
  3. The administration of expertise proceedings.

The ICC is in a unique position as its network of 90 national committees around the world provides the ICC with direct links to government and business worldwide. The ICC therefore has access to a network of experts in a wide range of fields internationally. The ICC's International Centre for Expertise ("the Centre") is assisted by a Standing Committee. The Standing Committee comprises a chairman, two vice chairmen and eight further members for a three year renewable term. These individuals are drawn from around the world, thus adding to the international perspective of the ICC.

The Rules for Expertise are divided into five main sections:

  1. Section I: General Provisions;
  2. Section II: Proposal of Experts;
  3. Section III: Appointment of Experts;
  4. Section IV: Administration of Expertise Proceedings; and
  5. Section V: Miscellaneous.

The General Provisions describe the three distinct processes offered by the ICC as follows:

"The International Centre for Expertise (the "Centre") is a services centre of the International Chamber of Commerce (ICC). The Centre can perform one or more of the following functions in connection with domestic or international business matters:

  1. Proposal of experts
  2. Upon the request of any physical or legal person(s) or any court or tribunal (a "Person"), the Centre can provide the name of one or more experts in a particular field of activity, pursuant to Section II of these Rules. The Centre's role is limited to proposing the name of one or more experts. The Person requesting a proposal may then contact directly the proposed ex a proposal may then contact directly the proposed ext(s), and, as the case may be, agree with such expert(s) on the scope of the appropriate mission and fees. There is no obligation to make use of the services of an expert proposed by the Centre. The proposal of an expert may be useful in many different contexts. A person may require an expert in connection with its ongoing business activities or in connection with contractual relations. A party to an arbitration may wish to obtain the name of a potential expert witness. A court or arbitral tribunal which has decided to appoint an expert may seek a proposal from the Centre.
  3. Appointment of experts
  4. The Centre will appoint an expert, pursuant to Section III of these Rules, in situations where the parties have agreed to the appointment of an expert and have agreed to use the Centre as the appointing authority or where the Centre is otherwise satisfied that there is a sufficient basis for appointing an expert. In such cases the appointment by the Centre shall be binding on the parties. The Centre's role is limited to appointing the expert in question,
  5. Administration of expertise proceedings
  6. When the parties have agreed upon the administration of expertise proceedings by the Centre or when the Centre is otherwise satisfied that there is sufficient basis for administering expertise proceedings, the Centre will administer the proceedings pursuant to Section IV of these Rules."

The final section V "Miscellaneous" deals simply with waiver, exclusion of liability and the "General Rule". If a party proceeds without raising an objection, then Article 15 states that that party has deemed to have waived its right to object. Article 16 provides an exclusion of liability for the expert, the Centre, the ICC, the ICC's employees and the ICC national committees. The General Rule requires the Centre and the experts to act within the spirit of the ICC's Rules.

The 3 substantive sections of the Rules deal with:

  1. Proposal of Experts;
  2. Appointment of Experts; and
  3. Administration of Expertise Proceedings.

Each of the procedures are considered below.

Proposal of Experts

Anyone may ask the Centre to propose one or more experts. The proposal must include:

  1. The name, address, telephone and fax numbers and email address of each person making the request for a proposal;
  2. A statement that the person is seeking a proposal of an expert by the Centre;
  3. A description of the field of activity of the expert to be proposed, together with any desired qualifications. This should include but not limited to education, language skills, professional experience, but should also set out any undesired attributes;
  4. A description of any issues that might disqualify a potential expert; and
  5. A description of the work to be carried out by the expert and the desired timeframe for concluding the work.

The Centre will make a proposal through an ICC national committee or perhaps direct. The Centre then has no further involvement.

The person requesting the proposal must make a non-refundable payment for each expert. Currently that fee is US$2,500 for each expert.

The Centre when selecting an expert for proposal will consider the information provided in the request and will then try to match a prospective expert's qualifications to the particular circumstances of the case. The Centre will also take into account the expert's availability, normal place of residence and language skills.

A prospective expert is required by the Centre to sign a statement of independence and also to make disclosure in writing of any facts or circumstances that might call into question that expert's independence.

Appointment of Experts

The Centre will also appoint experts. This will only be done where the parties have agreed that an appointment of an expert is to be made by the Centre, or where the Centre is otherwise satisfied that there is sufficient basis for appointing an expert.

Any person may therefore make a request, providing that it can be demonstrated that the parties have agreed that there should be a joint appointment. It could, therefore be an agent acting on behalf of the parties, or one of the parties acting for both of them or alternatively, the tribunal based upon an agreement of the parties. Either party may agree after the arbitration has commenced, or the Rules may provide that the tribunal can appoint an expert.

The request for an appointment requires the same details as for a proposal, but in addition, a copy of the parties' agreement or other foundation for the basis of the request must also be provided to the Centre. If a request is made by only one of the parties, then the Centre will send a copy of the request to the other party and request observations within a limited time.1 The Centre will then proceed on the observations, or if no observations are received within the time limit, the Centre will proceed to make an appointment in any event.2

Once again, the appointment is made either through the ICC National Committee or directly. The expert must once again be independent and is required to disclose facts or circumstances which might call into question the expert's independence.

A non-refundable fee is payable to the Centre when making the request.3 A fee is payable for each request.

Administration of Expert Proceedings

The purpose of the administration of expert proceedings by the Centre is to provide a non-binding written recommendation of an expert. The expert is appointed and is required to determine the issues, in consultation with the parties, and set out the basis of their "mission" to a timetable. The mission of the expert may change as more information becomes available, but the role of the expert is nonetheless to provide a written non-binding recommendation.

A request to the Centre requires the same information as for a proposal.

A non-refundable fee is paid for the request for each expert, and in addition a deposit is required which is likely to cover the administrative expenses of the Centre and the fees and expenses of the expert. The Centre will determine the amount of the deposit, but the parties are able to calculate the likely amount by visiting the ICC's website. The Centre will not proceed until the fee and the deposit has been paid.

On the conclusion of the proceedings or termination of the proceedings, the parties are required to pay any excess. Payment must be made before notification of the expert's final report.

The Centre's administration of the expert proceedings is set out at Article 9.5, and includes:"

  1. co-ordination between the parties and the experts;
  2. initiating the appropriate steps to encourage the expeditious completion of the expert proceedings;
  3. supervising the final aspects of the proceedings;
  4. appointment of an expert using the procedure referred to in Section III or confirmation of an expert agreed to by all parties;
  5. review of the form of the expert's report;
  6. notification of the expert's final report to the parties; and
  7. notification of the termination of the expert proceedings.
  8. "

The Expert's Mission

Article 12 of the ICC Rules for Expertise sets out the requirements for the experts "mission". The expert is effectively identifying the scope of the work to be carried out by them. Article 12.1 is set out in the following terms:

"The expert, after having consulted the parties, shall set out the expert's mission in their written document. That document shall not be inconsistent with anything in these Rules and shall be communicated to the parties and to the Centre. Such document shall include:

  1. the names, addresses, telephone and facsimile numbers and e-mail addresses of the parties;
  2. a list of issues to be treated in the expert's report;
  3. the name(s), address(es), telephone and facsimile numbers and e-mail address(es) of the expert or (experts);
  4. The procedure to be followed by the expert and the place where the expertise should be conducted; and
  5. a statement indicating the language in which the proceedings will be conducted.
  6. "

Modifications to the expert's mission may be made by the expert, in writing, only after full consultation with the party. Any such modifications shall be communicated to the parties and to the Centre."

The expert is, therefore, to identify the issues to be covered in the expert's report. The procedure for investigating those issues, and no doubt any tests or analysis that may be required are also to be identified. Article 12 recognises that modifications may be required once further information becomes available, but those modifications require the agreement of the parties.

Article 12.2 requires the expert to identify a provisional timetable for the conduct of the expertise proceedings. Modifications to the timetable must be communicated to the parties and to the Centre.4

The expert's mission, therefore, 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 need only be communicated to the parties, but must also be communicated to the Centre.

The expert's findings are to be set out in a written report. The report should be delivered within the timetable, and of course must only deal with the issues identified in the mission.

The parties must be given the opportunity to be heard and/or make written submissions before the expert produces their final written report.5 Article 12.3 states that:

"unless otherwise agreed by all of the parties, the findings of the expert shall not be binding upon the parties."

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.6 However, the expert's report is to be admissible in any judicial or arbitral proceedings that involve the same parties.7

The expertise proceedings are administered by the Centre. As a result, under Article 12.6 once the final draft report is prepared, it is sent to the Centre before it is signed. The Centre will review it and may require modifications to be made. The report is therefore not to be communicated to the parties by the expert. The expert does not have any power to sign the report until the Centre has approved the report.

Once the Centre has approved the report, the expert may sign it and provide sufficient copies to the Centre to allow for one copy for each party and then one for the Centre to retain. The Centre will then serve the report on the parties, and notify the parties that the expert proceedings are concluded. The Centre can waive the requirement of Article 12(6) if requested by the parties, and the Centre considers that a waiver is appropriate in that particular case.

There are two important duties placed upon the parties under Article 13.

First, non-participation will not deprive the expert of the power to make findings and render a report. If the report is non-binding, then the non-participation of a party will most likely make the process of little use. However, if the parties have already agreed that the report is to be binding then, depending upon the other dispute resolution procedures in the contract, the experts' findings may be enforceable. This is not an entirely straightforward area. Much will depend upon the dispute resolution procedures in the contract, and the applicable law.

Second, by agreeing to the ICC Rules, the parties have agreed that they will provide documents and adhere to the expert's report. Importantly, they also agree to facilitate the implementation of the experts' mission and to provide free access to the "place" so that the expert can carry out a proper investigation.

Conclusion

The ICC's Rules for Expertise provide for a variety of situations, from a mere proposal to a fully administered expert appraisal. The ICC is the only truly international business focused organisation in the world that is able to offer and support such a system.

Footnotes

1 Article 5.5.

2 Article 5.6.

3 Article 8.

4 Article 12.3.

5 Article 12.5.

6 Article 12.4.

To see further articles on matters relating to construction, engineering and energy projects, please visit www.fenwickelliott.co.uk.

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.