Stepping into the Hot Tub: Concurrent Expert Evidence in Commercial Arbitration

AuthorDominique T Hussey & Will Bortolin
chapter twelve
Stepping into the Hot Tub: Concurrent
Expert Evidence in Commercial
dominiQuE t hussEy & Will bortolin
The presentation of expert evidence in commercial arbitration
has generally mirrored that in litigation before the courts: Highly
qualied experts appear sequentially before the decision maker,
each party hopes that its expert’s opinion will be adopted and its
opponent’s disregarded, and opinions are elicited and tested only
through counsel’s questions. The result is often that the experts
speak at cross-purposes and advocate rather than elucidate. Char-
isma and craftiness assume the signicance of credentials and
eclipse the quality of the opinions.
Many litigants are dissatised with the traditional method
of adducing expert evidence. The common complaints are that
(1) the other party’s expert witness evidence suers from bias, (2)
adjudicators lacking subject matter expertise struggle to resolve
contradictory opinions, and (3) the process is tedious, time-con-
suming, and costly.
Concurrent expert evidence, also known as hot tubbing or
expert panels, is an alternative method of presenting expert evi-
dence to a tribunal. The core feature is that experts having con-
tradictory views are sworn in at the same time and invited to
dominiQuE t hussEy & Will bortolin
engage in a direct dialogue with a view to explaining, explor-
ing, and potentially resolving their dierences. This method rst
rose to prominence in Australia and has since drawn keen inter-
est from the judicial systems in the United Kingdom, the United
States, and Canada. There are also anecdotal reports of its use in
private arbitrations.1
As the method has made its way to the Canadian courts and
appears to be here to stay, its use in commercial arbitration will
naturally follow. Canadian legal practitioners should therefore
understand the advantages and pitfalls of “hot tubbing.” This
chapter discusses the function of expert evidence and its associ-
ated problems. It then evaluates the purported advantages of hot
tubbing in addressing these problems as experienced in several
jurisdictions and concludes with a suggested framework for as-
sessing whether hot tubbing would be appropriate in a particular
commercial arbitration.
Expert evidence serves two distinguishable functions. The rst
is informational. In a dispute that involves sophisticated subject
matter, as commercial arbitration often does, the adjudicator may
need help understanding basic principles or background facts ne-
cessary to resolve the dispute. The expert’s “opinion” here func-
tions as factual evidence, which feeds into the legal tests that the
adjudicator will apply. In a patent infringement case, for example,
experts are often called upon to opine on what a “person of ordin-
ary skill” in a particular eld would have known or believed as of a
historical date. With the benet of that information, the adjudica-
tor can determine how the patent should be interpreted, whether it
has been infringed, or whether the patented subject matter was in-
deed inventive and therefore validly granted as of the relevant date.
1 See Doug Jones, “Recent Developments in International Commercial Arbi-
tration” (2008) 11 International Trade and Business Law Review 83 at 104–5.

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