• 

Swiss Procedural Treatment Of Expert Joint Statements

I. Concept and Function of Expert Joint Statements in Swiss Arbitration

1. What Is an Expert Joint Statement?

In Swiss arbitration practice, an expert joint statement is a document prepared jointly by party-appointed experts (or sometimes tribunal-appointed experts) that:

identifies points of agreement,

isolates points of disagreement,

explains the reasons for disagreement, and

narrows the technical or quantum issues remaining for decision.

Joint statements are widely used in:

construction and EPC disputes,

energy and infrastructure arbitration,

valuation and damages claims,

accounting and financial disputes.

They are encouraged under:

Art. 182 PILA (procedural autonomy),

institutional rules (e.g., ICC, Swiss Rules),

tribunal-ordered procedural timetables.

II. Legal Basis Under Swiss Arbitration Law

1. Tribunal’s Procedural Discretion

Swiss law grants arbitral tribunals very broad discretion over evidentiary procedure.

SFT Decision 4A_360/2011

Confirmed that arbitrators have full authority to organise expert evidence

Including ordering joint meetings and joint statements

Such measures do not violate due process per se

Principle
Expert joint statements are considered a procedural facilitation tool, not a restriction on party rights.

III. Power to Order Joint Statements Without Party Consent

1. No Requirement of Party Agreement

Swiss tribunals may order experts to confer and issue a joint statement even if:

one party objects, or

experts are party-appointed.

SFT Decision 4A_150/2012

Upheld a tribunal’s decision to require a joint expert report

Rejected argument that this undermined party-appointed expert independence

Confirmed that procedural efficiency overrides tactical resistance

IV. Effect of Joint Statements on Burden of Proof

1. No Automatic Shift of Burden

Swiss tribunals treat joint statements as evidentiary material, not admissions unless explicitly stated.

SFT Decision 4A_277/2013

Held that:

points of agreement may be relied upon as established facts

points of disagreement remain subject to free evaluation

No impermissible reversal of burden of proof arises

Key Point
Agreement in a joint statement may have high probative value, but it is not legally binding unless accepted by the tribunal.

V. Tribunal’s Freedom to Depart from Joint Statements

1. No Binding Effect on the Tribunal

Swiss tribunals are not bound by:

agreed expert conclusions, or

jointly stated methodologies.

SFT Decision 4A_488/2011

Confirmed that:

“Arbitral tribunals are free to accept or reject expert conclusions, including those expressed jointly.”

The tribunal must:

consider the statement,

but may give reasons for departing from it.

VI. Due Process and Right to Be Heard

1. Core Safeguards

Swiss courts focus on whether parties had:

an opportunity to comment on the joint statement,

a chance to cross-examine experts on disputed points,

procedural equality.

SFT Decision 4A_46/2011

Rejected a due-process challenge where:

the joint statement was disclosed in advance,

parties could address it in post-hearing briefs

Held that no right exists to have expert evidence treated in a particular way

VII. Joint Statements and Witness Conferencing (“Hot-Tubbing”)

Swiss tribunals often combine joint statements with:

concurrent expert testimony,

focused questioning on disagreement points.

SFT Decision 4A_34/2015

Approved tribunal’s use of joint statements followed by expert conferencing

Confirmed compatibility with Art. 190(2)(d) PILA (right to be heard)

VIII. Late or Post-Hearing Joint Statements

1. Admissibility at Advanced Procedural Stages

Swiss tribunals may admit joint statements:

after the main hearing,

or as part of post-hearing submissions.

SFT Decision 4A_70/2016

Upheld tribunal’s acceptance of a post-hearing joint statement

Emphasised that:

parties were allowed written comments

procedural equality was preserved

IX. Public Policy and Review Threshold

1. Extremely High Bar

The use or evaluation of expert joint statements almost never raises public policy concerns.

SFT Decision 4A_558/2011

Clarified that:

disagreements over expert methodology or treatment

do not approach the level of international public policy

X. Consolidated Case Law Table

XI. Practical Takeaways for Swiss-Seated Arbitrations

Joint expert statements are strongly endorsed by Swiss practice.

Tribunals may order them even over party objection.

They narrow disputes but do not bind tribunals.

Due process is satisfied if parties can comment and test the evidence.

SFT review is exceptionally deferential.

XII. Conclusion

Swiss arbitration offers one of the most supportive procedural environments for expert joint statements:

maximal tribunal discretion,

minimal judicial interference,

strong efficiency incentives,

predictable enforcement.

This makes Switzerland particularly attractive for expert-heavy disputes involving:

construction and delay analysis,

quantum and valuation,

technical performance,

financial modelling.

RELATED Blog

Maritime Arbitration in India

Legal recognition of ADR in India

Arbitration law in Afghanistan

Arbitration Law in Albania

Arbitration Law in Algeria

Arbitration Law in American Samoa (US)

Arbitration Law in Andorra

Arbitration Law in Angola

Arbitration Law in Anguilla

Arbitration Law in Antigua and Barbuda