The confidentiality and broad enforceability of international commercial arbitration have made it a preferred method for resolving cross-border commercial disputes in recent years. Parties involved in multinational transactions often choose to arbitrate in locations such as Hong Kong, Singapore and London, based on industry practices and commercial considerations. Concurrently, as mainland Chinese enterprises expand overseas and their market positions evolve, many commercial contracts now stipulate Chinese law as the governing law.
National Executive Committee Director
SGLA Law Firm
Tel: +021 6836 1233
Email: paul.zhou@sgla.com
Arbitral tribunals for such international commercial disputes typically consist of members with extensive legal knowledge and professional experience, including lawyers or retired judges from common law jurisdictions.
When handling cases governed by Chinese law, these tribunals require Chinese legal expert witnesses to provide relevant legal opinions to assist in making arbitration decisions based on the case facts.
Under current international commercial arbitration practice, parties usually nominate their own expert witnesses. These experts submit written opinions on pertinent legal issues and are subject to questioning during hearings by tribunal members and lawyers representing the different parties.
This means expert witnesses must not only possess strong expertise in specific fields such as international trade, insurance, customs and maritime law, they must also be familiar with international commercial arbitration procedures. This ensures they can effectively demonstrate their professional capabilities during hearings and assist the tribunal to resolve key issues.
Importantly, expert witnesses do not have the job of the parties’ Chinese lawyers. Their role is to provide independent, objective and impartial professional opinions to the arbitral tribunal. Therefore, in practice, the following aspects should be considered to ensure Chinese legal expert witnesses fulfil their roles effectively.
First, select the appropriate expert based on the specifics of the case. Scholars and lawyers form the two main choices of expert candidates. While industry reputation and influence are important, the focus should be on the expert’s actual professional capability in areas related to core legal issues.
Since the legal issues requiring expert testimony are often intertwined with industry practices, relevant practical experience not only enhances the expert’s qualifications but also equips them to handle intense questioning during hearings.
If the main arbitration tribunal members are lawyers or former judges from common law jurisdictions and legal issues primarily involve statutory interpretation, it is crucial to remember submissions that address the context of the statute, relevant laws and regulations, and judicial precedents will be more persuasive than the original legislative intent.
Second, identify the relevant legal issues and clarify the case facts and materials that the Chinese legal expert needs to understand and review in order to give their expert opinion. As the saying goes: “A tower of nine stories begins with a heap of earth”. Based on this author’s experience in handling such cases, this is the starting point and a crucial step in establishing a strong trust relationship between the parties, the legal team and the expert witness. It significantly impacts the establishment of an efficient communication mechanism among these parties during the subsequent handling of the case.
Senior Partner
SGLA Law Firm
Tel: +021 6836 1233
Email: leslie.shen@sgla.com
For expert witnesses, it is essential to dispel the misconception that they only need to provide general opinions on legal issues without addressing specific case facts. Typically, tribunal members and the lawyers will ask questions during the hearing that directly relate to the case facts so they can understand the specific application of the law. If the expert cannot provide persuasive opinions on this point, their credibility will be greatly diminished.
Third, expert witnesses must be familiar with the relevant tribunal procedures and consistently uphold credibility as a guiding principle during the hearing. In international commercial arbitration, the mechanisms related to witness testimony are deeply rooted in common law traditions that have evolved by incorporating practices from various jurisdictions.
For instance, rather than the traditional cross-examination of expert witnesses, the “hot tubbing” method is a newer approach widely adopted in international commercial arbitration. This involves both parties’ expert witnesses being brought together to discuss and debate the same issues under the tribunal’s supervision.
In such scenarios, if a lawyer with extensive trial experience serves as an expert witness, they must abandon a one-sided advocate mindset and focus on providing objective legal opinions to assist the tribunal in achieving a fair hearing.
Beyond overcoming habitual thinking and behaviour patterns that may be perceived as biased, the expert witness’s calm and confident demeanour is crucial in establishing credibility with the tribunal. While fluency in English is not mandatory, an expert witness who can fluently and accurately articulate their opinions in English will undoubtedly enhance their credibility. If the expert witness lacks confidence in their language skills, delivering opinions through a translator may be more effective.
Chinese legal expert witnesses in international commercial arbitration must possess strong professional skills and extensive practical experience. They play an increasingly important role in ensuring objective and fair arbitration proceedings.
Paul Zhou is the national executive committee director at SGLA Law Firm. He can be contacted by phone at 021 6836 1233 and by email at paul.zhou@sgla.com
Leslie Shen is a senior partner at SGLA Law Firm. He can be contacted by phone at 021 6836 1233 and by email at leslie.shen@sgla.com
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