The Use of Experts and the Assessment of Economic Damages in Commercial Arbitration

• Author: Neal Mizrahi
• Pages: 361-376

361

chapter thirteen

The Use of Experts and the Assessment

of Economic Damages in Commercial

Arbitration

nEAl mizrAhi*

A. INTRODUCTION

Experts are generally retained to provide an independent and ob-

jective opinion to assist the tribunal to form a conclusion in areas

that require expertise. While this role is generally well-known, ex-

perts have been criticized for being advocates for their client.

The rst part of this chapter outlines the role of the expert and

the various ways that bias may impact the expert’s evidence. The

second part outlines some best practices that counsel and the ex-

pert may employ to increase the eciency of the expert engagement

and improve the quality of the expert evidence in the arbitration.

The third part discusses the collaboration of expert witnesses in

arbitration in prehearing meetings, joint statements, and expert

witness conferencing (or hot tubbing). The fourth and nal part of

this chapter provides a primer on business valuation methodolo-

gies and discusses the challenges that an expert may face in a com-

monly encountered scenario: the valuation of a business or project

in an early stage of its economic life. This discussion is useful in

* The techniques and examples herein are illustrative. Their applicability

will depend on case factors (i.e. constraints, instructions) and the expert’s

professional judgment.

nEAl mizrAhi

362

demonstrating the type of complexities that valuation experts

commonly face and judgment that they commonly exercise.

While the discussion in this chapter is generally applicable to

all experts, its focus is on business valuation and damages quan-

tication experts. The discussion centres on the use of party-ap-

pointed, as opposed to tribunal-appointed, experts primarily in

Canadian and international commercial arbitration.

B. THE ROLE OF THE EXPERT

1) To Assist the Tribunal

Generally, in the context of both litigation and arbitration a party-

appointed expert is to be independent and objective, possess the

expertise to provide an opinion on a matter, and assist the judge or

tribunal in areas that require expertise. The expert’s general duty is

perhaps most comprehensively dened in the Federal Courts Rules:

1 An expert witness named to provide a report for use as evidence,

or to testify in a proceeding, has an overriding duty to assist the

Court impartially on matters relevant to his or her area of expertise.

2 This dut y overrides any duty to a party to the proceeding, includ-

ing the person retaining the expert witness. An expert is to be in-

dependent and objective. An expert is not an advocate for a party.1

While this denition is applicable to Canadian litigation, the ex-

pert’s role in litigation is generally consistent with the expert’s

role in arbitration, and this denition is useful to set the stage for

describing that role.

Before proceeding with this discussion, I note that for an expert

to give evidence in a Canadian court, he or she must undergo a quali-

cation process under oath. This process generally involves a pres-

entation of the expert’s credentials and experience, which may be

tested through cross-examination. Such a qualication process is not

generally found in practice in arbitration, as will be explained below.

1 SOR/98-106, Schedule (Rule 52.2).