The Need for Legislative Reforms

We examined the crucial role that experts play in arbitration and the challenges tribunals face relying on their opinions. The regulatory framework for expert evidence in India needs urgent reforms to increase the efficiency of expert evidence.

The existing legal framework is not free of problems. As discussed earlier, the existing legal framework does not define the term ‘Expert’. Further, Section 11 provides clear criteria for the appointment of an Arbitrator, while Sections 12 and 13 of the Act outline grounds for an Arbitrator’s disqualification, but there are no clear and exhaustive criteria for the appointment and removal of an expert. Additionally, the Act does not limit the time experts can take to submit reports, with durations varying due to different methodologies and a lack of standardised processes, undermining the very purpose of arbitration.    

Further, the high possibility of recurrent appointments, especially in the case of party-appointed experts, may lead to potential bias or undue influence , given the large sums involved. These systemic issues require legislative reform, without which the tribunals are left ill-equipped to efficiently resolve disputes.

Without legislative clarity, tribunals resort to ad-hoc solutions, resulting in inconsistency and delays. Reforms should establish safeguards to balance efficiency, transparency and fairness, ensuring expert evidence remains a credible pillar of arbitration.

Recommendations

While the Act and institutional rules provide for the appointment of experts, the lack of detailed procedural guidance and safeguards leaves a lot to the tribunal’s discretion. Although the tribunal’s procedural flexibility might be beneficial, reforms are needed to encourage a more proactive approach to maximise efficiency. Bolstering the current legal framework and aligning our procedures into compliance with international norms will support India’s ambition to become a global hub for international arbitration.

Firstly, model guidelines must be laid down governing the process of appointment and removal, as well as the functions of an expert. Guidelines covering wider domains such as duties and responsibilities, the format of an expert report, timelines for submission of reports, cross-examination procedure, etc, should be drawn by the Indian Council of Arbitration. Standardisation will help achieve higher transparency, consistency and efficiency.

Secondly, various jurisdictions’ best practices, such as the United States’ Daubert Standard, which requires peer-reviewed, scientifically sound methodologies, should be integrated to lessen the excessive dependence on ad hoc procedural discretion. Article 5(4) of the IBA Rules on Taking Evidence requires experts to meet and produce a joint list of agreed and disagreed-upon points. Other laws that can serve as a model include the ICC Rules for Appointment of Experts, the United Kingdom’s Civil Procedure Rules, etc.

Thirdly, just like Section 12 of the Act provides for arbitrators, experts should also be bound to declare any conflicts of interest. The law should encourage safeguards for greater transparency about experts’ prior engagements, fees, etc, especially for party-appointed ones.

Fourthly, clear grounds should be laid down for challenging the appointment of an expert and      their report. Provisions can be made through which the tribunal is empowered to bifurcate the expert’s report, and parties can partially challenge the conclusion reached by an expert.

Fifthly, to deal with conflicting opinions in case of multiple experts, ‘hot-tubbing’, or concurrent expert evidence, should be encouraged. Hot tubbing involves the experts presenting their testimony at the same time while being questioned by the tribunal, opposing counsel, and other experts. Such a debate lowers costs and redundant testimony while also providing the tribunal with greater clarity regarding areas of agreement and disagreement. In India, hot tubbing has been recognised under Rule 6, Chapter XI ( Annexure G) of the Delhi High Court (Original Side) Rules, 2008.

The above-mentioned reforms to the legislative framework governing expert witnesses in arbitration seek to create a more credible, consistent, and effective system while preserving arbitration’s defining characteristics – flexibility, speed, and party autonomy.  Strengthening the use of expert witnesses will improve arbitration’s legitimacy and trustworthiness as a dispute settlement procedure in India. Finally, these improvements will address systemic weaknesses while also reinforcing arbitration’s promise of fairness, efficiency, and expertise-driven justice.

Conclusion & Way Forward

There is little doubt that Expert witnesses play a crucial role in arbitration, especially in disputes demanding specialized knowledge beyond the arbitrator’s legal acumen. An expert’s testimony improves the tribunal’s ability to deal with difficult issues and deliver well-reasoned awards. This article, however, demonstrates that the current Indian legal framework is inadequate, with definitional uncertainties, procedural loopholes, and an overreliance on tribunal discretion.      Even though court rulings offer some guidance, they cannot take the place of substantial reforms. The way forward is through proactive institutional and legislative initiatives. Arbitral institutions must establish comprehensive and sector-specific procedures for expert testimony, as well as encourage transparency and accountability, such as expert registers and model guidelines on disclosure.

Furthermore, well-planned and effectively implemented capacity-building initiatives, such as training panel arbitrators to objectively evaluate the experts’ testimony and encouraging multidisciplinary discussions, will help improve the reliability of arbitral decisions. As India aims to position itself as a global arbitration hub, ensuring procedural integrity in the use of expert witnesses will be critical to promoting timely, fair and expertise-driven justice.

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.