Emerging Use Of Hot-Tubbing Experts In International Arbitration

(This is authored by Niyati Bhogayata of ILS Law College, Pune.)

Introduction

Settlement of disputes in arbitration particularly in international arbitration, involves complex commercial disputes such as economic and foreign trade disputes, and technical matters. Such special segments may be beyond the knowledge and experience of both legal counsel and arbitrators. This necessitates the presence of expert witness who can assess and help resolve the dispute efficiently. The role of an expert witness is not only to present the client’s case but is also to articulate and provide specific information to the arbitral tribunal which would assist it in taking an informed decision regarding the dispute. The tribunal may receive this assistance from party- appointed experts or may appoint their own experts.

Appointment of experts requires consideration of several factors, including the type of issues involved, questions of impartiality, the expert’s competence, etc. In a large number of cases, parties want to formulate their own terms to present their case and hence they prefer to choose the expert witnesses themselves. However, more often than not, their use comes at a significant expense, bringing challenges of partiality and ineffective deployment in proceedings.

Various institutional rules like International Bar Association Guidelines on Conflict of Interest, the Model Law as well as the UNCITRAL Rules have provided the protection of impartiality and independence to set out the ethical relationship of tribunal appointed experts with the parties. However, these rules are silent on grounds challenging the party-appointed expert.

With the aim to counter the criticisms related to the use of party-appointed experts, certain techniques have been popularized in international arbitration proceedings. This article exclusively deals with one such technique known as “expert witness conferencing” or “hot-tubbing”. This technique was first introduced in Australia by Rogers J in an insurance case in Spika Trading Pty Ltd v Royal Insurance Australia Ltd (1985) 3 ANZ after which several reforms have been adopted by Federal Court of Australia and the State Supreme Courts.

Hot-tubbing is an efficient method as the experts are sworn in by both the parties to appear together for engaging in a discussion on relevant issues. They are encouraged to effectively answer the same questions put forth by the tribunal to each one. Since the experts are giving evidence at the same time and in each other’s presence, arbitrators and judges can ask questions to help resolve conflicting views in real time.

How hot-tubbing compares to cross-examination:

Hot-tubbing is not a single defined procedure, but a flexible process that can be adapted to suit the nature of the proceedings. Although, cross-examination is the traditional method of examination, hot- tubbing contrasts the process in two broad aspects- witnesses being placed in conference together will inevitably interact with each other which does not occur in cross-examination where they are examined consecutively. Secondly, the degree of control that parties’ counsel have over the taking of evidence is also different in both the cases. While in cross-examination, the counsel dictates the direction and pace in testing of evidence, in witness-conferencing the tribunal and witnesses may be able to exert a greater degree of control.

Jurisdictions having adopted this concept:

In practice, hot-tubbing has been implemented by several legal systems apart from Australia such as Singapore, UK, and Canada among others, with countries providing guidelines intending to make the expert evidence process more stream-lined, less adversarial and more useful.

In Canada, the recent changes to the Federal Court Rules allows for hot-tubbing. Rule 282.1 allows “some or all of the expert witnesses to testify as a panel”. For example, in Apotex Inc. v. Astrazeneca Canada Inc.,54 the court first followed the traditional approach for expert evidence. The court then conducted a “hot tubbing” session where both experts testified concurrently to answer questions from the judge (under oath).

Similarly in UK, in the case of Harrison and others v. Shepherd Homes Ltd and others [2011] EWHC 1811 (TCC), Hon Mr Justice Ramsey observed that the process helped the judge by highlighting the extent of agreement and the limited differences.

In international arbitration, no existing rules of arbitration prohibit the use of alternative practices for handling expert witnesses. In fact, instruments such as IBA Rules on Taking Evidence in International Arbitration and CIArb Protocol contemplate witness-conferencing. For example, the International Bar Association (IBA) Rules have provisions which stimulate cooperation amongst the experts in the pre-hearing stages of the arbitration. Further, the IBA Rules on Taking Evidence provide the tribunal with discretion to implement various procedures with respect to the submission and taking of expert evidence. [See, IBA Rules Arts. 8 (3)(f) (‘the arbitral tribunal…may vary the order of witness testimony including… in such a manner that witnesses be questioned at the same time and in confrontation with each other (witness conferencing)]. In CIArb Protocol, although there is no explicit reference to expert witness conferencing (other than its implicit adoption of the IBA Rules), it provides that the Arbitral Tribunal may at any time, up to and during the hearing, direct the experts to confer and to provide further written reports to the Arbitral Tribunal either jointly or separately (See, The CIArb Guidelines, p. 26).

Although, this practice has not found widespread use in certain States viz. US, India; there seems to be some movement toward hot-tubbing. While The Federal Rules of Evidence do not specifically sanction the use of hot tubbing practice, it does provide a framework where this technique seems to fit. Rule 611 (a) gives a trial court the power to exercise “control over the mode and order of examining witnesses and presenting evidence so as to...”. Few cases where concurrent evidence has been used by US courts are: (a) in 2015, Hon. District Judge Jack Zouhary forced the experts to "splash" it out in a complex antitrust class-action in Ohio. (b)Hot tubbing has also been used in pre-trial situations, for example in a case of product liability - re Welding Fume Prods. Liab. Litig (Dkt. No. 1353). The court initially heard separately from the parties' experts. When their testimony revealed vastly different views regarding issues in hand, the court held an additional day of hearings using the concurrent evidence technique.

Hot-tubbing in Indian scenario:

Expert evidence in India is covered under Section 45-51 of the Indian Evidence Act. Hot-tubbing being different from traditional methods of cross-examination of an expert witness, it does not in entirety exclude examination of experts. The method has been equipped in Rule 6 of Delhi High Court Rules. Sub rules (d) and (e) of Rule 6 allows the party/counsel to question the expert witnesses thus the method is not contrary to examination of witnesses. Hot-tubbing becomes all the more relevant in India as it is in consonance with the 2015 Arbitration amendments. The Amendment Act is specifically focused on speedy resolution of arbitration proceedings. In line with this objective, one of the bonuses of the hot-tubbing method is its time effectiveness- conducting examination of witnesses concurrently will help achieve the aim of speedy trial in domestic arbitration.

Relevance of hot-tubbing

• Identification of definitional problems:

The keynote of this practice is easy exploration of issues by the tribunal. Since the method is more informal or relaxed, one-to-one engagement by the experts leads to an effective discussion. The process is extremely useful in narrowing the issues in dispute so that the points of friction and inconsistencies in the evidences can be hashed out easily.

• Time effective:

Arbitration is seen as the best alternative to litigation in modern times because of its expeditious nature in dispute settlement. Hot tubbing helps in saving time as it departs from the traditional sequential examination of expert witness. Contrary to the method of direct, cross and redirect process of examination of witness, concurrent evidence helps follow short summary of opinions simultaneously. The aim of hot tubbing is to reduce the length of the trial, as occurred in a recent case. The Federal Court of Australia used hot tubbing in Samsung v. Apple Inc. ([2011] FCAFC 156) due to the presence of numerous experts.

• Pre-hearing Conference:

Furthermore, pre-hearing conference of experts can help address only the discrete issues. An important objective of pre-hearing conference is to help reduce tensions between the experts which will help them understand as to where they have fundamental differences of opinion. Besides, the initial conference amongst the arbitrators and parties allows everyone to have a fair notice of the procedure to be used.

Disadvantages of hot-tubbing

Since, every bean has its black, witness conferencing has several reasons of varying weight against its use.

1. Loss of Control: Counsels find no opportunity to shape their responses or catch opponent side’s witnesses as they do not have control over the questions being put to the other side’s expert.

2. Issues between the experts: Sometimes the expert witnesses prove to be unfriendly, they fail to act in good faith and show disrespect to each other; this may diminish the value of hot-tubbing.

3. Additional Skills needed for experts: Unlike normal experts in litigation, hot tubbing as a process requires some additional skills in experts such as to be effective in probing and questioning of the other experts, produce rapid responses to the questions, and premium communication skills.

4. Risk of experienced testifying experts: The chances of dominating the discussion increases in cases where single expert has a greater knowledge on a particular topic.

Suggestions

The author is of the opinion that for the method to serve its purpose, it is the arbitral tribunal which must assert itself, so as to guide and control the proceedings. This ultimate check by the tribunal helps prevent the hot-tubbing session from taking negative tones. Further, and in order for the process to be pleasant and tactful, it is important for the expert witnesses, counsel and the members of the tribunal to be well prepared with the issues being discussed. The selection of experts plays a crucial role. The expert must have the ability to understand the issues in the case and the ability to explain their client’s position. There is a difference between a good expert and a good expert witness. A key quality needed to be a good expert witness is a genuine willingness and ability to explain. In fact, this quality is more important than expertise per se.

Conclusion

Hot tubbing has already seen some usage in international arbitration. A clear set of ground rules and acceptance of a common formal procedure by the countries would help increase its use. With the traditional examination method used for the factual witnesses, hot-tubbing would certainly be useful in expert evidence where complex technical issues are involved. The process would help in eliminating the bias of the experts and increase the comprehension of the arbitrators. Overall, given the potential of the hot-tubbing technique, its frequent use can help increase the efficacy of arbitration.