This article analyses the recent decision of the Dubai Court of Cassation in case No. 1406 of 2023, Commercial Appeal, which confirmed the decision of the Dubai Court of Appeal in setting aside an arbitral award because the Arbitral Tribunal appointed expert was not administered an oath.
The parties had referred their dispute to DIAC arbitration concerning a claim for payments arising out of a commercial contract.
There were various grounds for appeal submitted, including waiver of the arbitration agreement, and a lack of impartiality and independence of the arbitral tribunal amongst many other grounds. This article is not concerned with these other grounds of appeal as the Dubai Court of Cassation ultimately dealt with the question of whether an arbitral award ought to be set aside due to a failure for the Tribunal appointed expert to take an oath.
Before the Court of Appeal, an application was made for ratification of the arbitral award. This was granted, leading to an appeal being made to the Dubai Court of Cassation.
Tribunal Appointed Expert
It was argued that the expert assigned by the Tribunal performed in accordance with his instructions, however, he had not taken the oath. Therefore, the award that was made on the basis of his report was flawed and should be set aside.
The DIAC Rules 2007 were applicable. Under Rule 30, no requirement exists for a Tribunal appointed expert to take an oath. However, it was argued that the expert was effectively a witness, and therefore by virtue of Rule 29.7, a witness must swear an oath before giving evidence.
The Court noted that the quantum of damages went to the core of the arbitration proceedings and the amount awarded by the Tribunal was based on the evidence of the appointed expert.
The expert did not take the legal oath before carrying out his tasks, including prior to writing his reports, and at no point during the hearing was the oath taken.
As the parties had expressly agreed to be bound by the DIAC Rules 2007, and therefore Rule 29 requiring witnesses to take the legal oath, the award violated the requirements of the DIAC Rules 2007, as well as the relevant provisions of the Law of Evidence in Civil and Commercial Transactions in the UAE, being a matter of public order.
Consequently, the award was rendered in violation of public order and therefore was set aside.
This decision clarifies that any expert, whether appointed by the parties, or by the Tribunal, is a witness. Albeit an expert witness is categorised differently to lay witnesses, nonetheless, the same requirements as to oaths must apply to expert witnesses appointed by the Tribunal.
The outcome of this case is based on the fact that the parties had questioned the expert at the evidentiary hearing and, crucially, on the premise that the final arbitral award relied heavily on the findings of the said expert.
Experts, whether party appointed or Tribunal appointed, are ultimately witnesses and their reports amount to evidence adduced.
In any case, a witness of either kind gives evidence to be relied upon. The reliance to be placed on evidence is conditional upon the truth of the matters stated. Evidence is fortified by an oath, which takes the form of swearing on a holy book or affirmation.
It follows that all witnesses must take the oath and this decision from the Dubai Court of Cassation confirms the position that even Tribunal appointed expert witnesses must take the oath.
It is interesting to note that the DIAC Rules of 2007 and 2022 have two separate sections for Witnesses and for Experts Appointed by the Tribunal, which can give the impression that a different status is attributed to experts appointed by the Tribunal.
This may lead to an erroneous presumption that the only provisions applicable to situations where an expert is appointed by an Arbitral Tribunal are those covered by the Tribunal-expert- specific rule only and that the rule covering witnesses does not apply to Tribunal appointed experts.
However, Rule 29 DIAC Rules 2007 and Rule 27 DIAC Rules 2022 both deal with witnesses, in general. Both iterations of the rule stipulate that an oath is to be taken by witnesses. Therefore, taking either iteration of the rules, Tribunal appointed experts are seemingly covered.
The case further highlights the importance attached to the requirement of the oath. Even though the Appellant in this case had not raised the objection regarding the taking of the oath prior to the Dubai Court of Cassation case, the Court nonetheless found as a matter of public policy that the failure to administer the oath resulted in the award being set aside.
It would seem that the oath is only required where oral evidence is to be received by the Tribunal. This is derived from Rule 29.7 DIAC Rules 2007, and Rule 27.6 DIAC Rules 2022.
The case clarifies that Tribunal appointed experts are required to take the oath if there is a provision for witnesses to do so in the arbitral rules agreed to by the parties, otherwise arbitral awards are at serious risk of being set aside.
The safest option for any Tribunal, and party, is to ensure that the expert has taken the oath when giving oral evidence.
When it comes to written reports, it is likely best practice for a statement as to the truth of the contents of the report to be accompanied at the conclusion of the report. This is in line with international best practice as identified by Article 6(4(e) of the IBA Rules on the Taking of Evidence in International Arbitration.
It is noted that the rules of certain common-law jurisdictions require a Statement of Truth to appear at the end of an expert’s report.
For a comparative view, it is noted that Article 21.4 of the LCIA Arbitration Rules, which gives the Tribunal the power to require a Tribunal appointed expert to attend a hearing for questioning, expressly states that Article 20.8 of the LCIA Arbitration Rules shall apply with necessary changes. Article 20.8 stipulates that, “Subject to the mandatory provisions of any applicable law, the Arbitral Tribunal shall be entitled (but not required) to administer any appropriate oath or affirmation to any witness at any hearing, prior to the oral testimony of that witness. “ At the very least, the LCIA Arbitration Rules make clear that the applicable rule on oaths (Article 20.8) is applicable to witnesses of facts and experts as relied on by the parties (Article 20.1) and to experts appointed by the Tribunal (Article 21.4).
This article was written by arbitration lawyers Martin Khoshdel and Mohammed Nedal Dajani.
BSA is a regional Law Firm in the Middle East with offices in the UAE, Oman and Saudi Arabia. As a full-service law firm our practice areas include litigation, arbitration and corporate services, including M&A, banking & finance, Intellectual Property, TMT, Fintech, employment and insurance.
Published on 29 January, 2024.
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