4. Chapter 4: Arbitrator
4.3 Arbitrator vs Expert
23 litigation in the hands of people who have technical experience in this field in order to avoid resorting to expertise, which leads to increased costs.
24 The nature of the role of the arbitrator will be reviewed and compared with similarities and differences with the role of the expert, through some basic elements as following:
4.3.1 Qualifications:
The arbitration laws did not require academic qualification or specific experience that must be available in the arbitrator. In UAE arbitration law, there are no academic qualifications obligating to choose the arbitrator, and the scientific experience and qualifications required are agreed upon by the parties to the dispute. However, arbitration centres require the arbitrator to register an academic qualification and practical experience of no less than a certain number of years of experience in this field in order to be registered in the arbitration centre, and this is somewhat similar to the requirements of the expert as he or she is required to hold, as a minimum, a bachelor's degree and several years of practical experience in the specialty. In UAE, for the experts to be registered in the judicial department and to be a certified expert and approved by the UAE Ministry of Justice, they are requiring a university qualification in the field of specialization of the category to be enrolled in and an equivalent from the competent authorities, in addition to experience certificates supporting his expertise in the field in which he is specialized for at least ten years.
4.3.2 How to be appointed
The principle is that the appointment of the arbitrators is by the parties to the dispute, and in cases of disagreement about selecting the arbitrator, the appointment is made by the court or the arbitral institution. However, the expert is appointed during the arbitral process by the arbitral tribunal or by the court directly in case of litigation.
4.3.3 The nature of the relationship with the appointing authority
The relationship of the arbitrator with the parties to the dispute who appointed him/her in the arbitration case is a contractual relationship based on the arbitration agreement which constitute the framework for the arbitrator and define the obligations and rights for both
25 parties. But the relationship of the expert appointed to give his technical opinion on the subject of the dispute is a legal relationship regulated by law and subject to legal oversight.
4.3.4 The Mission of the Arbitrator:
The arbitrator’s mission is derived from the arbitration agreement and from the powers granted to him under this agreement, where the arbitrator acquires his jurisdiction by agreement with the parties and does not have any powers outside this agreement. Where the task of the arbitrator required of him is specified in detail, including the language and duration of the arbitration, the place in which the arbitration hearings will be held, and the procedures that will be followed during the arbitral process. The arbitrator shall abide by all of the foregoing and issue his judgment within the framework granted to him under the arbitration agreement, otherwise, the award shall become void.
While the task of the technical expert in arbitration is determined by the arbitral tribunal, whereby the expert derives his authority in the dispute by virtue of a preliminary ruling issued by the arbitral tribunal appointing him in the case. Where the procedures followed in the work of technical expertise are more flexible than the arbitration procedures. It is worth noting that the expert’s failure to follow the agreed-upon procedures to perform his task does not invalidate his work as an expert and therefore does not affect the validity of the judgment issued in the case, but in all cases, the expert mission to provide unbiased opinion in terms of his/her technical experience38.
4.3.5 Nature of role of the Arbitrator
The role of the arbitrator is a judicial role where the arbitrator plays a role similar to that of a judge in the arbitration case, while the role of the expert is a purely technical role in the subject of the dispute and is considered part of the evidence in the case39.
38 Jeffery Whitfield, Conflict in Construction (2012) p130.
39 Steven C Bennett, ‘Use of Experts in Arbitration: Alternatives for Improved Efficiency ±’ (2018) 218 73.
26 4.3.6 Oversight of the arbitrator's work
In arbitration, there is no actual monitoring over the arbitrator, as the arbitrator enjoys his immunity very similar to the immunity of judges. The sole observer of the arbitrator is his conscience, as in all cases he must comply with the rules of justice and fairness and act with impartiality and independence during the consideration of the arbitral case. Knowing that there is administrative control over the arbitrator’s work in the case of institutional arbitration. However, the expert, while carrying out his mission in the arbitral process, is subject to administrative and technical oversight by the arbitral tribunal. The expert appointed by the judiciary is subject to legal supervision through a judicial body supervising the work of expertise.
4.3.7 End of Mission
The natural end of the arbitrator's task is to issue an award that is final and binding on the parties. Where this decision is valid and enforceable and is not subject to appeal and review except in cases of nullity, which is an exceptional method and for exclusive reasons determined by the arbitration laws related to arbitration procedures without considering the subject matter of the dispute.
The expert’s task ends with the deposit of the expert’s report with the arbitral tribunal, which the arbitral tribunal has the right to accept or reject, as it is considered a piece of evidence only.
Where the expert examines the technical elements in the subject of the dispute and gives his technical opinion according to his experience in this field and then delivers the report to the arbitral tribunal, which has the right to adopt it in whole or in part or reject it, where the arbitral tribunal has absolute discretion
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