On 6 June, Compass Lexecon and Signature Litigation hosted a panel discussion titled “Innovation through sharing experiences: What arbitration can learn from litigation (and vice versa)”. The panel was composed of Alan Rozenberg (Compass Lexecon), Julian Delamer (Compass Lexecon), Yvette Austin (Compass Lexecon), Neil Newing (Signature Litigation), and Dan Spendlove (Signature Litigation). As the event was held under the Chatham House Rule, this post provides only a general overview of the issues discussed and does not attribute specific comments to individual participants.
The Framework for Discussion
The panel used litigation before the English Court as a framework for the discussion, noting that the perspectives shared focused on high-value cases, as slightly different protocols apply to lower-value matters. The involvement of experts in both litigation and arbitration was also a key theme of the event, owing to the composition of the panel and the long-standing experience of each of its members.
How the Timing of Evidence Production Affects Litigation and Arbitration
The panel discussed how the sequencing of evidence production can significantly influence the course of proceedings, particularly when comparing litigation and arbitration. In arbitration, the memorial-style approach is commonly used, where parties submit all arguments, pleadings, and evidence simultaneously. Although this method may seem efficient, the panel highlighted several drawbacks.
First, it requires experts to form their opinions without a full understanding of the dispute. This forces them to anticipate the opposing party’s arguments and evidence, which can lead to unnecessary or irrelevant analysis. Experts may address issues that were never raised or engage in debates outside the actual scope of the dispute.
Second, this approach limits the expert’s ability to provide a fully informed opinion. Without access to documents or information held by the opposing party, their conclusions may lack accuracy or depth. The more complete the information available, the more precise and relevant the expert analysis becomes.
In contrast, court litigation typically introduces evidence progressively, allowing experts to better understand which issues require their input and to focus their analysis accordingly.
The panel suggested that arbitration could benefit from adopting certain aspects of the litigation model—particularly by postponing document production until the key issues in dispute are clearly defined.
How the Method of Producing Evidence Can Affect Legal Procedure
The panel also explored how different methods of producing or exchanging evidence can influence the resolution of disputes in both litigation and arbitration. The discussion began with the advantages of the joint memorandum, a tool commonly used in English courts. According to the panel, requiring experts to agree on a joint memorandum compels them to find common ground on the issues in dispute. Although reaching this consensus may take additional time, the effort invested in preparing the memorandum can ultimately save time and resources for both parties and the court by reducing the likelihood of evidentiary disputes later in the process.
Another highlighted method of presenting expert evidence was the practice known as “hot-tubbing” or concurrent expert evidence. In this approach, experts present and defend their opinions simultaneously in a discussion moderated by the judge. The panel regarded this method as generally beneficial, as it allows the court and counsel to gain a clearer understanding of the reasoning behind each expert’s position.
Overall, the panel emphasized that encouraging experts to collaborate and reach consensus—rather than merely rebutting each other’s views—can significantly enhance the dispute resolution process. From the panel’s perspective, arbitration could benefit from adopting some of these evidence production methods commonly used in litigation.
How Publicity May Impact the Production of Evidence
Another key point raised by the panel was the impact of publicity in litigation on the production of evidence. In court proceedings, the process is generally entirely public. This means that when an expert testifies, their evidence becomes part of the public record. Similarly, once the case concludes, the judgment is published, making the expert’s contributions accessible to anyone.
This level of exposure imposes an additional burden on experts, who may face scrutiny not only from the judge but also from third parties, including the public and professional peers. The panel cited an example of a tool that allows users to search for an expert by name, revealing detailed information about their professional history and the quality of their past work. This underscores how the public nature of litigation can directly influence how expert reports are prepared and presented.
From the perspective of arbitration, the panel noted that confidentiality varies depending on the nature of the dispute. In commercial arbitration, proceedings are typically strictly confidential—hearings, expert reports, and the final award are not disclosed to the public. This contrasts with investment treaty arbitration, where there is often a greater degree of transparency. Depending on the applicable rules or agreements between the parties, awards may be published, and hearings may be recorded and made publicly available online.
The panel emphasized that while transparency can increase pressure on experts, it does not necessarily alter how they approach their work. In such cases, the integrity and professionalism of the expert become crucial in determining how much they are influenced by the public nature of the proceedings.
How Judges and Arbitrators Shape the Production of Evidence
The panel also examined the role of courts and tribunals in shaping the production of evidence. It was noted that arbitral tribunals are generally perceived as being more actively engaged in the evidentiary process, often posing direct questions to experts and guiding the discussion. In contrast, judges in litigation tend to adopt a more passive role, typically leaving it to the parties to shape how evidence is presented.
Additionally, the panel explored whether the fact that arbitrators are not always lawyers, but sometimes professionals from technical fields, could be advantageous. In cases involving highly complex or technical subject matters, an arbitrator with domain-specific expertise may engage with expert evidence in ways that even legal professionals cannot. This can enhance both the quality of the evidence and the robustness of the final award. However, the panel acknowledged that such appointments remain rare. Most arbitral tribunals are still composed of legal professionals—often the same individuals who serve as counsel in other cases. There is also pressure on counsel when appointing non-lawyers as arbitrators, particularly if the outcome does not meet client expectations.
The idea of having more technical expertise on the decision-making side was broadly supported by the panel. They also discussed the potential for judges to receive technical support, not just from party-appointed experts, but possibly through court-appointed experts or internal advisory systems. However, this raised concerns about loss of control over the evidentiary process by the parties and their legal teams.
The panel also cautioned against over-reliance on tribunal initiative. One example involved financial disputes, where valuation experts sometimes present economic damage models instead of traditional reports, expecting arbitrators to perform the calculations themselves. While innovative, this approach can backfire if arbitrators are unfamiliar with the tools, requiring them to first be trained before they can engage with the evidence meaningfully.
In general, the panel agreed that litigation could benefit from more proactive judges, taking inspiration from arbitration. However, it emphasized that proactiveness must be exercised with care—not only by judges and arbitrators, but also by experts, to ensure fairness and clarity in the evidentiary process.
Conclusion
Overall, the discussion identified opportunities for both litigation and arbitration to learn from each other to enhance the effectiveness of dispute resolution processes, while also underscoring the importance of maintaining clear boundaries for experts, counsels, judges, and arbitrators in both procedures.
This post is part of Kluwer Arbitration Blog’s coverage of London International Disputes Week 2025.
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