An expert investigation in the framework of arbitration proceedings: not always as easy as it seems

15 March 2019

Many rules and practices that are common in expert investigations in the framework of proceedings before Belgian courts cannot simply be transposed to the context of arbitration proceedings.

A well-known problem occurs when, at the start or in the course of an expert investigation, it proves necessary to involve third parties in the investigation (e.g. when a manufacturer wishes to involve the supplier of the raw materials it used in its production process). In the context of an expert investigation ordered by the court, the third party can easily intervene voluntarily in the ongoing court procedure or – if the third party refuses to do so – the third party can be summoned in forced intervention. It is even not unusual for third parties to participate in the court expert investigation without formally becoming a party to the court proceedings, e.g. when the expert investigation shows that the third party is not to blame.

However, this practice cannot simply be transposed to arbitration proceedings, given the consensual nature of such proceedings. If party X and party Y have entered into an arbitration agreement, party Y cannot simply involve third party Z just like that. Z can only join the proceedings if X and Y both agree and Z also agrees. The same applies to an expert investigation ordered in the framework of arbitration proceedings: If no agreement can be found regarding the participation of a third party, the standoff may be resolved by starting a new expert investigation outside the framework of the arbitration proceedings – if necessary with court intervention. Indeed, ongoing arbitration proceedings or even the mere existence of an arbitration agreement do not prevent a party from addressing the court in order to obtain provisional or conservatory measures.

Several other issues may arise in this context. Among other things, the question arises whether an expert report that has been drawn up in the context of arbitration proceedings can also be used vis-à-vis third parties (who were not a party to the arbitration proceedings). One might also think of problems relating to the use of languages in the expert investigation and issues in connection with obtaining documents or information that the expert needs in the context of his research and which are in the possession of a third party.

Many of these issues and related questions are discussed in a new chapter on expert investigation in arbitration proceedings, co-authored by the undersigned, in Bestendig Handboek Deskundigenonderzoek (Continuous Handbook on Expert Investigation).