Cost and Time

    Party-Appointed Experts in UAE Arbitration: Applying the IBA Rules and the CIArb Protocol

    How the IBA Rules and the CIArb Protocol govern party-appointed expert witnesses in UAE construction and energy arbitration.

    By Stuart Andrews3 min read
    • DIAC
    • arbitrateAD
    • SCCA
    • QICCA
    • BCDR
    • DIFC Courts
    • ADGM Courts
    • QICDRC
    • BICC

    Party-appointed experts dominate construction, infrastructure and energy arbitration in the UAE, just as they do internationally — international surveys consistently find that expert witnesses are party-appointed in the vast majority of arbitrations. Yet the "hired gun" problem — the risk that an expert, consciously or not, tailors evidence to favour the party paying their fees — remains one of the most persistent challenges facing DIAC and DIFC-seated tribunals. Two frameworks, the IBA Rules on the Taking of Evidence in International Arbitration and the Chartered Institute of Arbitrators' Protocol for the Use of Party-Appointed Expert Witnesses, provide the principal guardrails.

    The IBA Rules: The Regional Default:

    Most DIAC and DIFC-seated arbitrations adopt the IBA Rules on the Taking of Evidence by reference, either in the arbitration agreement or by tribunal direction at the first procedural hearing. Article 5 of the IBA Rules requires party-appointed expert reports to include:

    • A description of the expert's qualifications and relationship to the parties • A statement of the facts, documents and instructions relied upon • A statement of independence from the parties and their legal representatives • The expert's opinions and conclusions, together with the methods used to reach them

    Tribunals also have the discretion under Article 5.3 to order experts to meet and confer, and to record areas of agreement in writing — though notably, the IBA Rules do not require experts to record their reasons for disagreement, an omission that has drawn criticism from practitioners across the region.

    The CIArb Protocol: A More Detailed Framework:

    Where parties or tribunals want a more structured process, the CIArb Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration is increasingly referenced in UAE procedural orders, particularly in complex construction and energy matters. The Protocol goes further than the IBA Rules by:

    • Requiring an explicit expert declaration confirming independence, completeness of opinion, and an ongoing duty to correct the tribunal if the expert's view later changes • Mandating a structured conferral process, including identification of agreed and disputed issues, agreed testing methodologies, and documented reasons for any disagreement • Providing that written opinions and testimony inconsistent with the expert declaration may be disregarded by the tribunal absent exceptional circumstances

    Why This Matters in the UAE Context:

    The UAE's arbitration community brings together practitioners from common law and civil law backgrounds in equal measure. Civil law-trained counsel and arbitrators, for whom tribunal-appointed experts are the domestic norm, are often less familiar with the entrenched difficulties party-appointed expert evidence has caused in common law jurisdictions — and consequently less alert to the safeguards the IBA Rules and CIArb Protocol are designed to provide. This makes explicit procedural direction from the tribunal particularly important in DIAC and DIFC-seated proceedings involving mixed-tradition counsel teams.

    Practical Steps for Experts and Counsel:

    Experts instructed in UAE arbitrations should expect, and should welcome, tribunal directions that include:

    • An early conference between experts of like discipline to agree the questions to be addressed and, where possible, the factual and testing methodology to be applied • Deferral of report production until a common factual record is available, avoiding the "ships passing in the night" problem where opposing experts answer different questions based on different facts • A joint statement identifying agreed and disagreed issues, prepared before individual reports are exchanged • A clear expert declaration, whether under the IBA Rules or the CIArb Protocol, understood by the expert to carry real evidentiary consequences if breached

    The Bottom Line:

    In a market where party-appointed experts remain the norm, the credibility of expert evidence in UAE arbitration increasingly depends on procedural discipline rather than expert selection alone. Parties who engage experts prepared to embrace early conferral, transparent assumptions, and rigorous compliance with IBA or CIArb declaration requirements are far better positioned before DIAC and DIFC tribunals than those who treat expert evidence as simply another form of advocacy.

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