Excerpt – This article delves into the underregulated role of expert witnesses in arbitration under the Indian legal framework. It examines the existing legal system, identifies key practical challenges, such as non-conclusiveness, potential bias, conflicting opinions, etc. and proposes targeted reforms. It draws on international practices, advocating for standardised model procedures to ensure transparency and reliability, in light of India’s vision to emerge as a global arbitration hub.

Introduction

Arbitration is increasingly being chosen as an efficient alternative dispute resolution (hereinafter, “ADR”) mechanism due to its flexible, efficient, and time-saving nature. However, multiple cases involve complex technical facets, such as finance, handwriting, science, engineering, etc. Expert witnesses in arbitration provide specialized, professional and impartial insights into such matters, thus bridging the gap between legal and technical knowledge and helping the tribunal reach an informed decision.

Despite their pivotal contribution, the present laws governing expert witnesses have certain lacunas and scope for improvement, which this piece examines from an analytical perspective. It delves into the existing legal framework governing expert witnesses in arbitration, explores challenges in relying on the Expert’s testimony, examines gaps in the procedural structure, and addresses the need for a better legal structure.

Present Legal Framework Governing Expert Witnesses

While the term ‘expert witness’ has not been expressly defined under any Indian legislation, the Hon’ble Supreme Court (hereinafter, “SC”) observed that an ‘expert’ is someone who has extensive knowledge and proficiency in a certain field, who dedicates their time, study, observation, and practice to a unique experience. Thus, information or opinions provided by Experts on any subject matter about contested facts can be called expert evidence.

Section 26 of the Arbitration and Conciliation Act, 1996 (hereinafter, “the Act”) vests the Arbitral Tribunal with the authority to appoint experts to assist with any specific issue. The tribunal may require parties to provide the expert with any relevant information or documents. The expert submits a written or oral report, post which they may also participate in oral hearings where parties may question them, just like regular witness examination, and also present their own expert witnesses to testify before the tribunal.

The provision is similar to Section 39 – 45 of the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter, “BSA”). However, Section 19 of the Act particularly bars the applicability of the BSA on the Arbitral Tribunal. Section 24(3) of the Act provides that the parties must be informed of any expert report(s) or supporting documentation that the arbitral tribunal may use to reach its conclusion.

Rule 50 of The Indian Council of Arbitration’s Rules of Domestic Commercial Arbitration allows the tribunal to consult any person with specialized knowledge in a particular field, and any advocate for technical legal questions. Further, Rule 51 provides that the person may be examined by the tribunal and shall also provide it with any evidence, documents, etc., based on which they are testifying.

Rule 27 of the Delhi International Arbitration Centre’s Arbitration Proceeding Rules also allows the tribunal to allow witnesses in the arbitral proceedings. Parties may be required to provide the list of witnesses, including expert witnesses, their testimony’s subject matter, and its relevance. The tribunal can decide on the number of witnesses to be examined and also the time allocated for their testimony.

Regarding the appointment of expert witnesses, the SC in State of Himachal Pradesh v Jai Lal & Ors. stated that it must be shown that the expert witness has made a particular examination or gained specialized knowledge of the subject matter. As observed in State of Maharashtra v Damu, the expert witness shall provide not merely an assertion but also the underlying basis and reasoning for their opinion.

The SC in State of Karnataka v Selvi noted that an expert witness’s testimony is essentially advisory in nature. Their opinion alone cannot become the basis of conviction. They are not a factual witness and their role is to provide the judge with scientific benchmarks to allow the judge to form an independent opinion, based on the expert’s insights and the specifics of the case. As observed in Alamgir v State (NCT, Delhi), the expert’s testimony can be relied upon when supported by other evidence.

Limitations of Expert Evidence in Arbitration

Non-Conclusiveness

An expert’s opinion can be highly significant for the tribunal. Yet, it is not dispositive and does not constitute the final verdict. The opinion is merely advisory and has no binding effect on the arbitral tribunal or the parties.

Given the subjectivity of human opinion, it cannot be blindly accepted and/or considered as conclusive proof by the arbitral tribunal. However, it is not conclusive in itself and cannot be accepted completely. Consequently, the principal challenge to expert evidence is that the tribunal is not obligated to accept the expert’s testimony.

Fallibility of Experts

As per Section 26(2) of the Act, the expert, after submitting his report, shall be present in the hearing, and the parties can question him and present their own expert witnesses to testify or cross-examine him. It is trite that a court can decide whether or not to rely on the expert’s report after hearing objections from the parties to the expert’s opinion or the commissioner’s report.

As observed in Balkrishna v Radha Devi, similar to all other witnesses, the appointed expert’s testimony is also fallible. Without examination, expert evidence would be admissible, but no reliance can be placed on it.

If an expert’s opinion was not sought for a particular topic, it would be ignored as the Expert is bound to confine himself to relevant facts.

Conflicting Opinions

As already articulated, an expert’s opinion can be highly subjective. Since there is practically no limit on the number of experts that can be appointed, the possibility of conflicting opinions naturally arises. Such conflict may be even more plausible in the case of party-appointed arbitrators and cross-examination of Experts.

Where such a situation arises, tribunals struggle to reconcile substantially different conclusions, which undermines arbitration’s trustworthiness. Additionally, this may backfire and defeat the very point of expert testimony, which is to support the arbitral tribunal’s decision-making process. Usually, it also increases costs and delays the procedure.

Risk of Partiality

An expert may be appointed either by any of the parties or the tribunal itself. In the former case, the risk of bias naturally arises, questioning the expert’s credibility. Even though experts are cross-examined, the fact that experts are to be paid by the party appointing them creates a subliminal bias, as a report against the said party can affect their pay.

This does not, however, mean that tribunal-appointed experts are free from encumbrances. The tribunal may rely on them excessively to reach a decision, questioning the validity of such decisions. Moreover, the parties may still choose to present their own experts due to the lack of trust in tribunal-appointed experts.

The blog has been co-authored by Adarsh Jain, a third-year undergraduate student at National Law Institute University, Bhopal, and Dhriti Kaistha, a third-year undergraduate student at Himachal Pradesh National Law University, Shimla.