Part 3 of a 10-part series for clients navigating a dispute before the DIFC Courts or in DIAC arbitration.
Here is the single most important thing to understand about your expert witness: their primary duty is to the Court or the arbitral tribunal — not to you, even though you (or the other side) may be the one paying their fee.
Where this comes from
Under Part 31 of the Rules of the DIFC Courts (RDC), an expert giving evidence in DIFC Court proceedings owes a duty to help the Court on matters within their expertise, and this duty overrides any obligation owed to the party instructing or paying them.
The same underlying principle shapes expert evidence in DIAC arbitration. The DIAC Arbitration Rules 2022 leave much of the fine detail to the tribunal's own procedural orders, but tribunals routinely require party-appointed experts to confirm their independence and provide a genuinely held opinion — often by reference to the IBA Rules on the Taking of Evidence in International Arbitration.
What this means in practice
Your expert:
- Must give you their honest opinion, even where it's unfavourable to your position, or only partly supports it
- Cannot be instructed to reach a particular conclusion or to leave out facts that don't help your case
- May — and sometimes must — acknowledge the strengths of the opposing party's position
If the opinion isn't what you hoped for
If your expert's opinion isn't what you were expecting, that isn't a sign they've done a poor job. It's a sign they're doing exactly what's required of them.
Pressuring an expert to shift a genuinely held opinion is likely to backfire badly. It can be exposed under cross-examination, or surface later in a joint statement with the opposing expert (more on that in Part 9). And it can damage your own credibility with the Court or tribunal — not just your expert's.
It's an uncomfortable adjustment for a lot of clients, especially early in a dispute. But experts who are allowed to do their job properly, independently, are also the experts whose opinions carry real weight when it counts.
Next: Part 4 — Which Rules Apply: DIFC Courts or DIAC Arbitration.