Art. 816ter, paragraph 5, of the Italian Code of Civil Procedure provides that arbitrators may request the assistance of one or more technical consultants (otherwise known as expert witnesses). Both individuals and entities (e.g. university institutes, research institutes, etc.) may be appointed as technical consultants.
There is no obligation to appoint an expert who is a member of an official list of experts held at the court of reference.
The arbitrator is free to admit, or not to admit, the technical consultancy and to provide for it upon petition by a party or by the arbitration on its own initiative.
The arbitrator is entitled to appoint the technical consultant, but may not oblige him/her either to take an oath or to accept the appointment. The role of the technical consultant is that of a private auxiliary of the Arbitration Tribunal and shall not acquire, as occurs in ordinary proceedings, the qualification of public auxiliary.
The article of the Arbitration Chamber Rules governing expert witnesses is reported here below.
ART. 26 – EXPERT WITNESSES
- Upon request by a party or on its own initiative, the Arbitration Tribunal may appoint one or more expert witnesses or delegate their appointment to the Chamber of Arbitration.
- The arbitration-appointed expert witness shall comply with the duty of independence imposed upon the arbitrators by the Rules, and the rules governing the challenge of arbitrators shall also apply to him/her.
- Where the arbitration appoints an expert witness, the parties shall be entitled to appoint their own experts.
- The arbitration-appointed expert witness shall allow the parties and their experts, if any, to be present during the expert’s activities.
The arbitration-appointed expert witnesses’ fees and reimbursement of expenses fall within the scope of the costs of the proceedings governed by Art. 36 of the Chamber of Arbitration Rules.
FEES OF ARBITRATION-APPOINTED EXPERT WITNESSES
Arbitration-appointed expert witnesses’ fees are determined by the principle of fairness, also taking into consideration professional fee rates, the schedule of court fees and any other relevant circumstance (Art. 36, paragraph 7 of the Rules).
REIMBURSEMENT OF THE EXPENSES OF EXPERT WITNESSES APPOINTED BY THE ARBITRATION PROCEEDINGS
Requests for reimbursement of expenses of the arbitrators and arbitration-appointed expert witnesses must be accompanied by receipts. In the absence of receipts, expenses shall be deemed to be included in the relative fees (Art. 36, paragraph 8 of the Rules).