Failure to appoint an independent expert not a violation of the right to be heard
A company and a state contracted over four tourism projects and when a dispute arose the company invoked the arbitration clause. An ICC Arbitral Tribunal with its seat in Geneva was constituted. An interim award found that the respondent state had in fact breached the contract between the parties and was liable for the failure to execute two of the four projects.
At various points during the Arbitration, the Claimant had requested the appointment of an independent expert to assist the Arbitral Tribunal on quantum, but at other times had asked the arbitrators to conclude the case on the file as it was before them.
The Arbitral Tribunal was unable to come to an unanimous decision on the quantum claims of each side, so instead the Award was written by the Chair. The final Award largely dismissed the claims made by both sides.
The Claimant appealed to the Federal Tribunal. It argued the Arbitral Tribunal had violated its right to be heard by not appointing an independent expert, despite its requests that the Tribunal do so.
The Federal Tribunal rejected the appeal. The following points are of interest in the decision:
(i) The Court clarified that, in relation to the weighting of the evidence by an arbitral tribunal, the right to be heard is not merely violated by ‘formality’; rather it must be shown that there would have been a demonstrable effect on the outcome of the proceeding. (See Section 3.1 in this respect.)
(ii) A party to the proceeding must have made an explicit request for an independent expert to be appointed and done so in a timely and procedurally appropriate manner. It should also show (with reference to, or with submission of documentation) that a report from such an expert would be likely to bear on the outcome of the award, be able to prove the facts alleged, and appears necessary. This means that the expert report must either concern facts of such technical or other nature that cannot be proved in any other way or would provide expertise the arbitrators do not have themselves. This was not done in this case. (See Sections 3.1 and 3.2 in this respect.)
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Charles PONCET and Luisa MOCKLER