Page 90 - M & A Disputes

not provide for further American-style discovery techniques. The result is that an expert will have lim-
ited access to information in the possession of the other party for use in formulating opinions.

For example, paragraph 6(b) of the ICDR Guidelines for Arbitrators Concerning Exchanges of Infor-
mation limits discovery only to document exchanges, specifically stating that "[d]epositions, interrogato-
ries, and requests to admit ... are generally not appropriate procedures for obtaining information in inter-
national arbitration." Furthermore, the ICDR requires only the exchange of documents upon which each
party intends to rely. However, according to paragraph 3 of the ICDR Guidelines for Arbitrators Con-
cerning Exchanges of Information, the arbitrator may, upon application, require one party to make avail-
able documents in the party’s possession that are not otherwise available, are reasonably believed to ex-
ist, and are relevant and material to the outcome of the case.

Article 22 of the LCIA Arbitration Rules allows the arbitrator to order any party to make available any-
thing under its control relating to the subject matter of the arbitration for inspection by the arbitrator, an-
other party, or any expert to a party or the arbitrator.

Similarly, Article 27 of the UNCITRAL Arbitration Rules permits an arbitrator to require the parties to
produce documents, exhibits, or other evidence.

Under the ICC ICA, there is no rule providing the power to request the production or inspection of addi-
tional documents.

Therefore, if a party believes that access to information in the possession of the other party will be nec-
essary in the event of a dispute, it should consider other options or state specifically that such discovery
is available in the acquisition agreement. Parties should be careful not to unwittingly submit to truncated
discovery when the arbitration results are almost unassailable.

The Role of Experts and the Presentation of Evidence

When disputes arise, often, the most persuasive evidence before the neutral is that offered by a qualified
expert in the relevant field. Therefore, parties to an agreement should be mindful of the availability of an
expert, the procedures by which that expert is selected, the parties’ access to the expert, the materials
and information available to the expert, whether any limitations will be placed upon the expert, and the
parties’ ability to present their own experts (either within their cases in chief or as rebuttal).

In the international arbitration context, it is important to note that all the major institutions permit the
appointment of an expert by the arbitrator or neutral to assist in the determination of the important is-
sues. Therefore, rather than serving as a traditional party-appointed expert, a practitioner may be provid-
ing expert opinions in a report submitted directly to a neutral. In addition, a party-appointed expert may
find himself or herself in the role of challenging the opinion of an expert retained by the neutral.

Specifically, for example, Article 26 of the UNCITRAL Arbitration Rules permits a neutral to appoint an
expert to report to it in writing or orally on specific issues. Further, upon the request of a party or if the
neutral considers it necessary, the expert can participate in the hearing, where the parties may examine
him or her and even present witnesses to testify on the issues within the expert’s report.

Article 22 of the ICDR’s International Dispute Resolution Procedures also permits a neutral to appoint
an expert to report to it in writing on specific issues. The parties can respond in writing to the expert’s
report or request that the expert testify. The parties may also request that they be allowed to present wit-
nesses to testify on the issues within the expert’s report. Finally, the parties are specifically required to

88 © 2020 Association of International Certified Professional Accountants