•Who is an Expert?
An expert according to the definition of the law dictionary, is a Person or persons examined as witnesses in a cause, who testify in regard to some professional or technical matter arising in the case, and who are permitted to give their opinions as to such matter on account of their special training, skill, or familiarity with it. An expert is a person who possesses peculiar skill and knowledge upon the subject matter that he is required to give an opinion upon.
•When are the services of an Expert required?
An expert is required where there is a need to clarify issues in dispute in a tribunal by employing the service of a person specialized in that particular field to help ascertain the reliability or otherwise of facts presented by the parties to a dispute.
Article 29 of the Abuja Chamber of Commerce and Industry Dispute Resolution Centre (ACCI DRC) Rules 2017 makes provision for the duty of an expert in an arbitral tribunal.
Article 29 (1) of the ACCI DRC Rules 2017 provides that, after consultation with the parties during hearing, the arbitral tribunal may appoint one or more independent experts to report to it, in writing, on specific issues to be determined by the arbitral tribunal. A copy of the expert’s terms of reference, established by the arbitral tribunal shall be communicated to the parties.
Furthermore, according to Article 29 (2) ACCI DRC Rules, the expert shall in principle before accepting appointment submit to the arbitral tribunal and to the parties a description of his/her qualifications and a statement of his or her impartiality and independence within the time ordered by the arbitral tribunal. The parties shall inform the arbitral tribunal of any objection as to the experts’ qualifications, impartiality or independence only if the objection is for reasons which the parties became aware of after the appointment had been made. The arbitral tribunal shall decide promptly what, if any, actions to take.
Article 29(3) further provides that the parties shall give the experts any relevant information or produce for his or her inspection any relevant documents or goods that he or she may require of them. Any dispute between a party and such expert as to the relevance of the required information or production, shall be referred to the arbitral tribunal for decision.
Article 29(4) states that upon receipt of the expert report, the arbitral tribunal shall communicate a copy of the report to the parties, and they shall be given the opportunity to express in writing their opinion on the report. A party shall be entitled to examine any document on which the experts have relied on in his or her report.
Finally, Article 29(5) provides that, at the request of any of the parties, after delivery of the report, may be heard at a hearing where the parties shall have the opportunity to be present and interrogate the expert (s). At this hearing, any party may present expert witnesses in order to testify on the points at issue.
In conclusion, Expert witnesses are not permitted when giving evidence to tender their own opinions as fact. The reason for this is that to allow opinion evidence would be to usurp the fact-finding duties of the arbitrators.
By Amina N. Nwabuezeh, LL.B, BL, AICMC
Dispute Resolution Officer, Dispute Resolution Centre of Abuja Chamber of Commerce and Industry