31 January 2013

The issue was raised in an article published in late 2012.  That article discussed a case involving a Swiss company Flughafen Zurich AG and a Chilean company Gestion E Ingenieria IDC SA (“the claimants”) seeking damages against Venezuela (“the respondents”).

In this case the International Centre for Settlement of Investment Disputes (ICSID) Tribunal was asked to rule whether the evidence of Mr Ricover, an expert witness retained by the respondents, should be excluded. The claimants argued that during the preliminary stages of the proceedings they had considered engaging Mr Ricover as an expert witness and had emailed him confidential information. The claimants argued that Mr Ricover should be prevented from giving evidence on behalf of the respondents as he could have possibly considered this confidential information in his report or provided it to his client.


The ICSID ultimately ruled that Mr Ricover’s evidence should not be excluded. The rationale was that he had not accessed the confidential information and therefore had not seen and was unaware of its contents.
The article discussing this case asserted that this was a “sensible decision” as it sets a precedent to prevent one legal party strategically reducing the pool of experts available to their opposition by sending information to “taint” the experts. We agree with this sentiment.  However, in this case, it was fortunate that Mr Ricover had not accessed the files.  It would appear that if he had accessed the files then the tribunal may have had a different view.

For us (as experts) and our potential clients this highlights the need to understand the nature of documents or files that are sent to us for any potential engagement.

It is important to discuss with our clients what documents are being sent, to avoid reviewing sensitive information that could impact the engagement or a potential engagement with another party. Open and early dialogue with clients helps engagements run smoothly and limit avoidable issues down the track. Most importantly though always:

Ask before you look.

Source:
The original case details are in Spanish, however it can be found here:
https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC2652_Sp&caseId=C1181