NEWSLETTER-2017

181 ARBITRATION LAW tribunal, itself, may also appoint experts. These tribunal-appointed experts may be classified as independent experts. In international arbitrations, the right to be heard is beyond any doubt one of the cornerstones of arbitral proceedings. The right to be heard manifests itself under many occasions during arbitral proceed- ings, as well as during post-award proceedings. The infringement of the right to be heard is a ground to set-aside the arbitral award, as well as a ground of objection to the recognition and enforcement of the award. Accordingly, the decisions of the arbitral tribunal as to whether to order an independent expert review would also be reviewed by state courts, within the scope of the right to be heard. As a general rule, the tribunal is free to appoint an independent expert, considering the specifics of the case at hand. On the other hand, the parties may also request this appointment, in which case the tribunal will review the request in light of the fundamental principles, such as the right to be heard, and the conduct of arbitral proceedings in a timely and efficient manner. It should be emphasized that the ap- pointment of an independent expert requires an analysis in light of certain conditions that justify the appointment. The recent decision of the Swiss Federal Court, which conducts a thorough analysis of these conditions in light of the precedents of the Court, as well as the legal literature, is analyzed, below. Swiss Federal Court Decision In the arbitral proceedings that gave rise to the decision of the Swiss Federal Court, the arbitral tribunal rejected the request of one of the parties that an independent expert would be appointed, in order to conduct an assessment of its claims for loss of profit. In support of its request, the relevant party had submitted to the attention of the tribu- nal various supporting documents, namely, a bank report, a feasibility study along with an update, and a further report. In its decision, the arbitral tribunal concluded that the request lacked the required factual basis, and the documents submitted in sup- port of the request had been created subsequent to the dispute, with the aim to influence the arbitral tribunal, and were not sufficient to justify the request. Accordingly, the arbitral tribunal clarified that it has dis-