Review Lunch DIScussions: Technical Expert to the Arbitral Tribunal

Newsletter 12/2022 - Review: past events


In the Lunch DIScussions on 13 October 2022, Dr Sophie Barends of Deutsche Telekom AG and Kai Schumacher of AlixPartners, in a debate moderated by Dr Mathias Wittinghofer of Herbert Smith Freehills, considered the pros and cons of a arbitral tribunals resorting to the support of a “technical expert assistant” (“TEA”), i.e. a technical expert who advises the tribunal on difficult questions requiring expert knowledge without himself acting as an expert in the proceedings.

The panel discussed issues of previous experience, practical need, the threat of the TEA becoming a “fourth arbitrator”, the election process, how the parties’ right to be heard could be guaranteed while at the same time safeguarding the confidentiality of the tribunal’s deliberations, and many more topics. Dr Barends, taking on a role previously assigned, was critical of the concept, while Mr Schumacher advocated its advantages. Both at the beginning and at the end of the discussion, a survey was taken among the audience, with a majority being in favour of the concept before the discussion.  At the end of the discussion, that balance had slightly shifted in that the pros still held the majority, but with the cons having gained votes. A Solomonic outcome, with both disputants successfully holding their ground!

Mathias Wittinghofer


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