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Dispute Resolution with Arbitration Part 3
The difference between arbitration and expert opinions
Expert reports are very common in arbitration proceedings, especially in disputes that are highly technical. It is a common misconception that an expert report is equivalent to the decision of the arbitral award. The arbitral tribunal is not bounded by the expert report, in fact, arbitrators have to keep in consideration the evaluations of the expert. In few cases, arbitrators can even decide in a completely different way from the experts’ evaluation. Experts’ evaluation is enough to motivate arbitrators’ decisions.
In international trade, conflicts may arise concerning the quality of the product, in case one is lower than the one stated in the contract, disputes can arise from the differences between the goods’ description and the good itself. In these cases, experts may be appointed to decide if the contract has been performed according to the terms of the contract. However, experts can also provide reports about their findings and adjust the price of the contract accordingly with these findings.
As mention before, it is a common misconception that appointing an expert is equivalent to appointing an arbitrator. This view is supported by the fact that experts have a better knowledge of the issue compared to arbitrators and the latter often decide accordingly with the expert’s findings.
In reality, it is possible to have two scenarios. In the first, parties can appoint an expert as arbitrator or co-arbitrator, in this way they can reconcile the power to decide the dispute with the knowledge necessary to evaluate complex technical issues. In this way, experts’ findings coincide with the arbitral tribunal’s decision.
In the second scenario, the tribunal can appoint experts and parties can do it as well. In this case, the tribunal is not bounded by experts’ reports. Arbitrators can use these as a starting point to make the award, however, they are free to move away from the findings as long as it is possible to support the decision with valid reasons.
