국제건설중재에서의 전문가 증거의 법적 쟁점

This paper addresses the issue of an expert’s responsibility in evidence presentations, focusing on international construction arbitration. Specifically, this paper focuses on the subject of expert evidence in international construction arbitration, including admissibility and, if there is an error in expert evidence or if there is a difference with the procedures agreed by the parties, how arbitral awards can be canceled or refused recognition and enforcement. When parties are in a dispute, the presentation of evidence in support of the argument is very important. However, unlike the standard civil litigation procedures, in international arbitration, the parties must agree to the evidence investigation procedures and, without such agreement, the lex loci arbitri or arbitrator’s decision will be adopted. In other words, in common law systems, the parties appoint experts (or expert witnesses), but in civil law systems, judges or arbitrators appoint experts directly to avoid partisan or bias. Moreover, the expert witness bears the fundamental duty of reporting an opinion to the arbitration tribunal objectively and fairly, and the question arises as to whether this obligation conflicts with the obligation owed to the party to whom he has been appointed. However, the duty to maintain impartiality takes precedence over a duty to the parties and is resolved through legal regulations. Yet, one must consider whether the expert should accept responsibility when he or she violates this duty. In the past, there were professional exemptions in England, but now they restrict immunity. However, some arbitration rules require professional immunity, and the exemptions of experts differ from country to country. We have considered the reasons for the cancellation of arbitration awards or refusal of recognition and enforcement of foreign arbitral awards, caused by professional breach of contract obligations or illegal actions—in particular by errors in expert evidence or defects in the parties’ agreed upon arbitral procedures. However, because it cannot be easily concluded due to contrary public policies in certain countries, there seems to be no reason except for the rather unreasonable interpretation and judgment of few countries. In this regard, although there are national differences in professional immunity, experts should also be held responsible for their intentional or grave negligence. Yet, because the parties have difficulty with proof, we propose the exemption through the application of the professional liability insurance system. Also, it is time to examine the problems of our professional evidence system.