November 16, 2016 Articles

Gatekeeping: U.S. Litigation vs. Arbitration

Practices and rules in various arbitration venues compared with Daubert or Frye proceedings used in domestic litigation.

Jennifer Vanderhart

As they do in U.S. domestic litigation, independent industry or valuation experts often play an important role in both U.S. domestic arbitration and international arbitral proceedings. However, there are critical differences depending on venue. In U.S. domestic arbitration, state or federal rules of civil procedure are often incorporated directly, or applied indirectly, and the expectations and treatment of experts are similar to those found in U.S. domestic court proceedings. In other instances, especially in international arbitral proceedings, the manner of dealing with experts is different from that to which U.S. litigators are accustomed.

Although an arbitral panel may appoint its own expert, as can judges in U.S. domestic courts, most expert witnesses are hired by the parties, resulting in the situation sometimes referred to as the “battle of the experts.”

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