The ICC Rules for Expertise regulate three distinct services under the ICC International Centre for Expertise: Proposal of an expert, Appointment of an expert, and Administration of expertise proceedings.
Each service is available to parties seeking the opinion of an impartial expert on issues of a technical, legal, financial or other nature.
The Centre offers the following services:
Proposal of an expert
(Section II of the Rules)
Upon request, the Centre provides the name of an expert suitable for the case. Whoever makes the request can accept or reject the name of the expert proposed.
Appointment of an expert (Section III of the Rules)
Upon request, the Centre provides the name of an expert suitable for the case. The parties must accept the appointment.
Administration of the expertise proceedings (Section IV of the Rules)
Upon request, the Centre appoints an expert and monitors the proceedings from start to finish.
Arbitral Tribunals acting under the ICC Rules of Arbitration are exempt from charges for the proposal of an expert by the Centre (article 2-1 of Appendix II Schedule of expertise costs)
ICC expertise can cover technical, financial or contractual issues. It may be requested by one or several parties to a contract or before a deal has been struck. Expertise provided through the Centre can assist amicable settlement of a dispute or resolve a mere difference of opinion. It may do no more than remove uncertainty about a set of facts. If the parties wish, the findings can be binding. ICC expertise may be used during litigation or arbitration.
Here are possible applications:
- Advice on technical or financial matters before a contract is signed
- Assessment of the value of a company's assets during a takeover
- Advice on price re-evaluation under long-term contracts
- Establishment of the legal scope of technology transfer agreements
- Test for the quality of a product or building project
- Investigation of the performance of an industrial plant and conformity with specifications
- Rendering of a record of the factual situation during construction of an industrial plant
- Expert testimony in a court of law or in arbitration proceedings, at the request of the parties or the judge or arbitral tribunal
The appointment of an expert
The request to appoint an expert can be submitted jointly by both parties or by one of them. The parties may submit the name of an expert to the Centre by mutual agreement.
A physical person or a legal entity may be entrusted with the expertise, which is set in motion under the responsibility of a single expert. The expert's task is to carry out the expertise in accordance with an established brief, which includes the drafting of a report. However, for complex appraisals or whenever necessary, the expert can be assisted by other persons of his or her choice. Where this may have a bearing on the cost of the process, the parties are informed in advance of the additional financial costs of the expertise.
In addition to checking the qualifications of the expert in the field concerned, the Centre will endeavour to select a person who is independent of both parties. The availability of the expert, his or her linguistic abilities and place of residence are further criteria which influence the Centre's choice.
The expert's report
The expert's mission is defined by the party (or parties) requesting the expertise.
The expert's main task is to make findings, after giving the parties the opportunity to be heard and/or to make representations.
The attention of the parties should be drawn to two major points that may be considered either at the time of drafting the expertise clause or when considering the implementation of an expertise procedure in accordance with the ICC Rules:
- the expert can submit recommendations to the parties only if an agreement between them gives him or her authority to do so;
- failing an agreement between the parties, the expert's report shall not be binding upon them.
Notification of the report
The expert's report is notified to the parties by the Centre.
Value and evidentiary strength of the expertise
The expertise is essentially aimed at establishing certain facts, by way of a report, which as a general rule is not binding upon the parties. It is thus quite distinct from arbitration, a procedure whose purpose is to settle a dispute regarding a claim and which leads to a binding award that can be recognized and enforced in many countries.
Whilst, generally speaking, expert opinions are not binding upon judges or arbitrators, they can nevertheless be of value as admissible evidence or even create presumptions within certain legal systems. The parties may give the expert opinion contractual force by incorporating it in their contract.
Moreover, it will be difficult in practice for a party to question in a court the findings of a neutral expert, which have been made as close as possible in time to the disputed events, especially where they concern items that have since disappeared or been altered.