Arbitration Law: Expert Report, Impartiality, and Tribunal Analysis

This report examines an arbitration case concerning the admissibility of an expert report prepared by Prof. Rzhavy. The central issue revolves around the impartiality and independence of the expert witness due to potential conflicts of interest arising from prior commercial relationships with a tribunal member and one of the parties involved. The report analyzes the application of relevant provisions from the UK 1996 Act and LCIA rules, focusing on the tribunal's duties, the standards for assessing impartiality, and the potential for serious irregularity. It explores the distinction between expert reports submitted as evidence and the tribunal's power to appoint its own experts. The analysis culminates in a conclusion that the tribunal should exclude the expert report due to the lack of impartiality and independence, emphasizing the tribunal's discretion in managing evidence and ensuring a fair arbitration process. The report also considers the implications of the tribunal's decision under the reasonable arbitrator test and the concept of serious irregularity.

Arbitration Law, Reasoned opinion1
Arbitration Law
By (name)
Subject: Civil Law
(University)
(Professor)
(State, City)
(Date)

Arbitration Law, Reasoned opinion2
According to S34 under UK 1996 Act, and article 20 in LCIA rules Craigie shows an intention to
include an expert report prepared by Prof. Rzhavy as written evidence. Rzhavy has a wide
experience in the field of renewable energy. Feeglie is objected to the inclusion of any evidence
from Rzhavy on the ground that Rzhavy lacks impartiality and independence due to the existence
of a previous commercial relationship with Ms. Samovarova, an arbitration tribunal member
appointed by Feeglie, and Craigie as well. The tribunal has a duty and power of examining the
objection request received. This will be done by checking whether the pre-existing relationship
impacts the outcome of the report if this is the case, then Rzhavy report has to be put aside.
Under S1, and S33 from UK 1996 Act the tribunal has to care for the parties by acting fairly and
impartially by giving each one of them a chance to present his case and respond to the opponent's
insinuations, moreover, this duty is extended under S34 to include adopting appropriate
procedures suitable for each scenario to minimize the cost and delay. However, these provisions
constrain the tribunal's power in decision making though they are mandatory and can't be
ignored. Also, this duty shall be sustained throughout arbitration processes by reviewing
submissions, listening to explanations, adjudicating evidence, awarding the parties appropriately
and any other tribunal conduct. The parties to the arbitration can challenge any award reached
based on the existence of a serious irregularity or remove the arbitrator due to the existence of
circumstances resulting in justifiable doubts touching on their impartiality under S68, and S24
from UK 1996 Act respectively.
To begin by examining the relationship between Rzhavy and Samovarova against Feeglie’s
allegations which amount to a conflict of interest, and pose a risk to the arbitration outcome;
there are justifiable doubts as to Samovarova’s impartiality which can lead to substantial
injustice. The same test can be used by the public court since the arbitration involves a judicial
function as summarized by (topic 7 pages 4 refs) Lord Hope in Porter v Magill at para 103 in this
way:
“… whether the fair-minded and informed observer, having considered the facts, would
conclude that there was a real possibility that the tribunal was biased .."
However, lack of independence doesn't mean impartiality and if the test is applied on the
commercial relationship between Rzhavy and Samovarova yet it was terminated 10 years ago
and there is no financial interest (Reference topic 7 pages 16) currently between the two,

Arbitration Law, Reasoned opinion3
therefore a fair-minded and informed observer will not conclude that there is a possibility that
Samovarova will be biased and conclude in favor or disfavor of one of the parties. Moreover,
lack of confidence in Samovarova will be mutually agreed upon by both parties were as in this
case Craigie still confident in Samovarova (references topic7 page 678). Under articles 5.4, and
5.5 from LCIA rules the arbitrator has to be very careful where there is some link between a
client and one of the parties, and in such a case, whether asked to disclose any link or not, good
practice would dictate that any such link should be canvassed with the parties, who, if they
accept the appointment in the knowledge of the link, will be barred by S.73 from bringing an
S.24 application later.
The link between Rzhavy and Craigie shall be examined and if their previous relationship
survives the test then the tribunal will include the expert report with the submitted evidence to be
adjudicated, otherwise, the report will be excluded as per Feeglie’s objection request. Before
proceeding with the examination of the relationship between Rzhavy, and Craigie, we have to
distinguish between the right of parties in the arbitration agreement to submit an expert report as
evidence like the witness under S34 from 1996 arbitration Act, and article 20 from LCIA rules,
alongside the tribunal's power to assign an expert to assess the report and report it on legal and
technical matters in the case, merits under S37 from UK 1996 act, and article 21 from LCIA
rules. The tribunal will exercise this power when it needs an expert opinion on the merits to
maintain its impartiality under S33 of the UK 1996 Act. The tribunal has to take parties'
representation on the identity of the assessor, moreover, once the tribunal has assigned the expert
assessor, they have to be cautious of their impartiality and independence from the parties in
question notwithstanding any relations whether commercial or personal with one of the parties. If
this shall be the case then it shall be declared to the tribunal and counterpart (supported with
reference case). On the other hand, if one party submit an expert report as evidence, the UK
1996, and LCIA rules stipulate expert impartiality rather than dependence of the expert from the
tribunal or parties. It has been clearly expressed this way in Article 20.6 from LCIA rules.
Finally, all submissions, pieces of evidence, testimony will be verified, investigated, validated,
concluded, and adjudicated by the tribunal without any irregularity in their actions that might
cause substantial injustice.

Arbitration Law, Reasoned opinion4
In general, the court supports the arbitration rather than being involved, and the court can be
engaged in three situations either to challenge the tribunal’s jurisdiction under S67, application
of tribunal peremptory orders or direction under S42, or challenge the final arbitral award due to
serious irregularity in the arbitration process Under S68 from UK 1996 Act. In the light of S68,
we will examine the tribunal act in accepting the expert report submitted by Craigie against
serious irregularity. To apply such a test it will be necessary to ignore the fact that the parties
have agreed to arbitrate, not litigate. Having chosen arbitration, the parties cannot validly
complain of substantial injustice unless what has happened simply cannot on any view be
defended as an acceptable consequence of that choice (reference topic8 page3).
To succeed in the challenge under S68, an irregularity should be serious, inordinate, onerous, and
lead to substantial injustice and if serious irregularity occurs in the tribunal conduct without
affecting the tribunal's determination then the challenge will not succeed. Based on the
circumstances of an irregularity on its applicability, it will be examined by a reasonable
expectation of the parties' test, reasonable arbitrator test, or serious irregularity test. Under article
5.9 from LCIA rule it can be recognized that the appointed arbitrator shall hold proper
qualification suit with case circumstances, in addition to the scenario context of the second
question it can be recognized that the appointed arbitrators are qualified to adjudicate the dispute
based evidence and merits however Ms. Samovarova has a commercial relationship with Rzhavy
in the field of energy. Under S34 from UK 1996 Act, and article 22.1 (VI) from LCIA rules the
arbitral tribunal has a wide discretion to "allow, refuse or limit the appearance of witnesses,
either witnesses of fact or expert witnesses" and based on this the tribunal can exercise their
power by rejecting the expert report especially if they don't need any expert help. If they have
required skills to adjudicate and issue the arbitral award impartially without delegating any of
tribunal duties to the expert witness (ref topic 8 pages 17) unless Craigie can establish that the
expert would have made a substantive contribution to the proceedings, and that will depend on
the expertise of the tribunal and the discipline of the expert (ref topic 8 pages 17). The
aforementioned tribunal discretion power can be extended to reject or omit evidence on grounds
of lack of impartiality and the party's dependence. It can be recognized from the scenario context
that Rzhavy is not independent of Craigie since there was a commercial relationship between
them and which has been used several times in submitting expert evidence in favor of Craigie.
(ref topic 8 pages 18).

Arbitration Law, Reasoned opinion5
In conclusion, the tribunal should accept the objection request to exclude the expert report on the
ground of lack of impartiality and independence. Samovarova did not declare the link to the
expert. Moreover, the tribunal has a discretional power to include or exclude evidence based on
the above-mentioned grounds and such a tribunal act will survive the reasonable arbitrator test
against irregularity.
References
LCIA Arbitration Rules (2014) the UK.
UK 1996 Act