27 November 2017

"US Spotlight" blog series: demystifying Swiss arbitration for the US litigator (Volume 6 of 10)

This blog series provides the US litigator with a practical understanding of Swiss arbitration. It compares a Swiss arbitral proceeding under the Swiss Rules of International Arbitration ("Swiss Rules"), though other rules, e.g., the International Chamber of Commerce ("ICC") Rules, are often used, with a dispute in US Federal District Court ("USDC").

Either party may rely on expert testimony in Swiss arbitration. There is more flexibility built into how the parties may introduce that testimony than provided for in USDC pursuant to FRCP 26(a)(2)(A)-(D). Generally, if a party wishes to introduce expert testimony in Swiss arbitration, it will submit an expert report in conjunction with its first substantive pleading, viz., the statement of claim or statement of defence. However, "surprise" expert reports introduced for the first time at the rejoinder stage are by no means unusual—in such situations, the aggrieved party would be wise to seek leave from the tribunal to file a responsive expert report. Other approaches, such as prescribed dates for both parties to introduce expert reports or an agreement that both parties will introduce expert reports in the second round of substantive pleadings, are not unusual.

There is no mandated window of time in a Swiss arbitration to evaluate the counterparty's expert report, and then depose the expert on any holes in the report. FRCP 26(b)(4)(A). Depositions of course are not allowed at all in Swiss arbitration. There is no possibility of potentially bringing a Daubert motion because there are no Daubert motions in Swiss arbitration, though pursuant to Art. 24(2) Swiss Rules, portions of an expert opinion may be struck out for lack of relevance, materiality, or probative weight. Such a request to strike out portions, or the entirety, of an expert report is often made orally upon the conclusion of the expert's testimony.

While mechanisms are in place to discredit expert opinions once disclosed, the long pretrial funnel in USDC litigation, where each party can attack and excise sections of a counterparty's expert report, is not available in the same way. Rather, the counterparty will have the opportunity to cross-examine the expert on his methodology, findings, credentials, data, and documents, during the hearing. Such cross-examination will of course form the basis of any request to strike out some or all of an expert report.
In addition to experts brought forth by the parties, the tribunal may also appoint its own expert to assist it with understanding concepts requiring particular knowledge, e.g., science or technology. Art. 27 Swiss Rules. There is no analog for this sort of neutral-appointed expert in USDC, and it is a concept that emphasizes the active, collaborative role that neutrals in Swiss arbitration play. This highlights a fundamental difference between civil (Swiss) and common (US) law systems. US judges serve an adversarial system and take a limited approach toward adjudicating cases before them. They tend to only act once a party has specifically asked them to do something. By contrast, neutrals in civil law systems serve more of an inquisitorial role and have less reservation about looking into facts and issues on their own volition and without a party's prompt. US parties who think that a Swiss arbitrator will not do his own homework on complex or technical concepts…consider yourself forewarned.

Our Dispute Resolution Team would be happy to discuss any further questions you may have.

Author:Jim Nickovich

Prior volumes: Volume 1, Why Swiss Arbitration? Getting started; Volume 2, The organizational conference; Volume 3, Substantive pleadings; Volume 4, Evidence; Volume 5, Discovery (viz., the lack thereof)

What's up next: Volume 7: The Hearing, part 1, publication date, 11 December 2017

Topics: Dispute ResolutionLitigationUS SpotlightSwiss RulesArbitration


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