An expert is an independent expert who answers factual or technical questions for which the judge or arbitrator himself lacks sufficient knowledge. In international disputes concerning construction, IT, product quality, and valuation, the expert is often decisive. At Musch Legal, we regularly see that the party with the best expert report wins the case, regardless of the legal argumentation. Those who underestimate the role of experts lose disputes that were winnable.
What is the legal problem? (Why is the choice of expert so important?)
Internationally, the rules for the use of experts vary widely. Under Dutch law, Article 194 of the Code of Civil Procedure regulates experts appointed by the judge (see wetten.overheid.nl). Under common law (US, UK), party-appointed experts are standard, with cross-examination. Under civil law systems, the tribunal-appointed expert predominates. In arbitration, the 2020 IBA Rules on the Taking of Evidence in International Arbitration are frequently applied. Which regime applies determines the strategy, costs, and outcome.
What does the law say? (Which rules apply to experts?)
Articles 194-200 of the Dutch Code of Civil Procedure (Rv) govern expert examination in the Netherlands. The judge appoints, formulates questions, and weighs the report. IBA Rules Rules 5 and 6 govern party-appointed and tribunal-appointed experts in arbitration. Under English law, CPR 35 is leading, with the expert's duty to the court taking precedence over the party hiring him. For specific sectors, there are industry institutes such as SGS, Intertek, and TÜV for technical reports.
For claims experts, standards such as IFRS, US GAAP, and methods like DCF and multiples are leading. FIDIC and NEN standards are relevant for construction.
What risks do companies face? (What goes wrong without a good expert?)
A weak expert report weakens even strong legal positions. An overpriced expert can multiply costs without commercial gain. Experts without international experience often lack context. Conflicts of interest or limited independence lead to rejection. Awkwardly formulated questions steer the outcome in the wrong direction. Late engagement of an expert can lead to loss of evidence.
Practical example from our practice (How did we win a steel dispute?)
Musch Legal recently represented a Dutch supplier in an ICC arbitration against a Romanian buyer regarding the quality of delivered steel structures. The opposing party had engaged a Romanian expert who concluded there was non-conformity. We brought in an international party-appointed expert with FIDIC experience who refuted the other expert's measurement method. The tribunal accepted our methodology and largely dismissed the claim. The client saved 2.4 million euros.
What can you do? (What steps do you take in the event of an impending dispute?)
Select experts early in the process. Seek international reputation, sector knowledge, and good communication in the language of the proceedings. Carefully align the assignment description, avoiding leading questions. Methodically build the evidentiary position using data, photos, and logs. For arbitration: study IBA Rules in advance and incorporate expert protocols via Procedural Order 1. Combine technical experts with financial damage experts where necessary. Engage Musch Legal for strategic selection. See also our article on Product Quality Disputes.