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the proposed opinion testimony, then subsequently cross-examined by the
other side in an attempt to rebut the expert opinions.
The witness conference procedure is especially useful in the taking of
expert testimony, which is basic and critical in complex disputes. Arbitration
institutional rules generally seem to allow, if not favour, such an innovative,
flexible process, one example being art. 27(2) of the Vancouver
International Arbitration Centre (“VanIAC”) International Commercial Arbitration
Rules of Procedure, which provides that “the arbitral tribunal may
determine the manner in which witnesses are to be examined”. The rules of
the American Arbitration Association (“AAA”), the International Centre for
Dispute Resolution (“ICDR”) and the International Chamber of Commerce
(“ICC”) are no exception (see AAA Commercial Rules 32 and 34; ICDR Rule
26(3); ICC Rule 25).
In its landmark case on arbitration, Mitsubishi v. Soler, the U.S. Supreme
Court stated that “access to expertise” is a “hallmark of arbitration”, and “it
is often a judgment that streamlined proceedings and expeditious results
will best serve the parties’ needs … ; it is typically a desire to keep the
effort and expense required to resolve a dispute within manageable bounds
that prompts the parties mutually to forgo access to judicial remedies”.1
The policy of Mitsubishi is to encourage creativity and flexibility to resolve
(“streamline”) complex disputes by arbitration, and this would include in
the area of expert testimony. Expert witness conferencing carries out this
policy cleverly, and effectively allows the arbitrator and parties to create a
bespoke process to test competing expert theories, the essence in many
complex arbitrations.
Of course, the traditional sequential pattern of testimony is for the party
with the burden of proof to go first with direct testimony of its witnesses,
then the witness is cross-examined, and then the opposing party answers
with direct examination of its witnesses followed by cross-examination. Witness
conferencing departs from this traditional pattern.
Expert engineering, scientific or economic testimony in complex arbitrations,
such as seen in many competition/antitrust, IP or construction disputes,
is fundamental and critical to shed light on and prove or disprove the
difficult issues that are ever-present in those cases. Those issues may, for
example, include ones relating to the relevant market, the nature of entry
barriers, competitive pricing, efficiencies, fair licensing practices, patent
validity, construction defects, delays, milestone achievements, etc. What
Mitsubishi teaches is that the tool kit of the arbitrator and the parties to best
offer, take and understand this difficult evidence has no tight perimeter; the
arbitrator and parties can be creative in devising efficient procedures and