Professor Velimir Zivkovic led a discussion on the evolving role of non-lawyers in international arbitration. Joined by practitioners Miljana Bigovic, Matej Pustay, and Michail Risvas, the conversation explored how technical experts navigate arbitration proceedings.
Rethinking the Legal Monopoly
The session opened with a provocative perspective: “those of you who know the history of arbitration would actually say that lawyers in arbitration are the exception and not the rule,” noted Zivkovic. Originally designed for industry professionals to resolve disputes outside formal courts, arbitration aimed to avoid legalisation whilst providing swift resolution.
This historical foundation challenges contemporary assumptions about who belongs in arbitration. The original concept envisioned merchants, tradespeople, and technical experts making decisions based on industry knowledge rather than legal precedent. These early arbitrators understood the practical realities of their sectors in ways that traditional judges, bound by legal procedure and statutory interpretation, simply could not.
The irony, as Zivkovic observed, is that lawyers may actually be the “impostors” in this system. What began as an alternative to lawyer-dominated litigation has gradually transformed into something resembling the very system it sought to replace. This raises fundamental questions about whether arbitration has lost touch with its original purpose or simply evolved to meet the demands of increasingly complex international commerce.
The Professionalisation Challenge
Modern arbitration faces a fundamental paradox that threatens its accessibility to non-lawyers. As procedures become more legalistic, they create barriers for the very industry experts whose knowledge arbitration was designed to harness. “The more legalistic you make it, the more need you have for lawyers,” Zivkovic explained, highlighting the self-reinforcing cycle that increasingly excludes non-legal professionals.
This transformation didn’t happen overnight. International arbitration has evolved to handle disputes of enormous complexity and value, often involving multiple jurisdictions, sophisticated legal frameworks, and billions of dollars at stake. The pressure to ensure procedural fairness and enforceability has driven the adoption of court-like procedures, detailed rules of evidence, and elaborate case management protocols.
The result is a chicken-and-egg problem: the more lawyers shape arbitration to resemble litigation, the more essential legal training becomes for meaningful participation. Non-lawyers find themselves struggling to navigate procedural requirements that would have been alien to arbitration’s founding principles. Yet the alternative—returning to simpler procedures—might compromise the system’s ability to handle today’s complex international disputes effectively.
Expert Witnesses
Expert testimony emerged as the predominant pathway for non-lawyers entering arbitration. As Bigovic observed, “expert work is definitely the way in for all non-lawyers in arbitration.” These professionals provide objective testimony on technical, financial, and industry-specific matters beyond tribunal knowledge, serving as bridges between complex technical realities and legal decision-making.
The scope of expert involvement has expanded dramatically with the sophistication of modern disputes. Risvas highlighted two critical areas: technical expertise covering construction delays, engineering failures, and industry-specific standards, and financial expertise encompassing quantum analysis, damages calculation, and economic assessments. In investment arbitration particularly, quantum experts have become indispensable for calculating the often astronomical sums at stake.
Expert determination has also gained prominence as a pre-arbitration dispute resolution mechanism. Many commercial agreements now include multi-tier processes where expert determination precedes formal arbitration, allowing technical professionals to resolve disputes before they escalate to full legal proceedings. This development represents a partial return to arbitration’s original vision whilst acknowledging the need for legal safeguards in complex cases.
The pathway from expert to arbitrator exists but requires careful navigation. Many successful arbitrators began their careers as expert witnesses, gradually building reputation and understanding of arbitral procedures. An LLM in arbitration or related field can provide crucial legal grounding whilst preserving technical expertise, creating what Bigovic described as “the best of both worlds.”
Beyond Report Writing
Many experts fundamentally underestimate arbitration’s demands, viewing their role as limited to producing written opinions. The reality extends far beyond report writing to include rigorous cross-examination under intense pressure. Bigovic recounted one expert being “shocked” to learn she would be examined on her opinion, having assumed report submission concluded her involvement—a misconception that reveals how little many technical professionals understand about arbitral procedure.
The hearing phase represents what Bigovic called “the most difficult” aspect of expert participation. Experts find themselves “seated in the middle of the room” with “three people looking at you, and then you have people from the sides. Some you’ve seen, some you’ve never seen before, and you know that there are millions of dollars at stake.” This psychological pressure can overwhelm even the most technically competent professionals.
Successful expert participation requires a trinity of skills: technical mastery of their field, communication abilities to articulate complex concepts clearly under pressure, and psychological resilience to maintain composure during aggressive cross-examination. The adversarial nature of the process means experts must defend not just their conclusions but their methodology, assumptions, and even their credibility.
Preparation becomes crucial. Witness preparation sessions, where permitted by bar association rules, help experts understand the types of challenges they’ll face. As Bigovic noted, opposing counsel may adopt aggressive tactics, sometimes “bullying the witnesses,” requiring experts to maintain confidence in their expertise whilst remaining respectful to the tribunal. The most successful experts learn to “fall back” on their superior knowledge of their field when under pressure.
Professional vs. Technical Experts
The discussion revealed a fundamental distinction between two categories of experts that shapes selection strategies and expectations. “Professional experts,” particularly quantum specialists, have developed arbitration-specific skills and understand procedural requirements intimately. These repeat players command premium fees, provide predictable performance, and know how to navigate the adversarial environment effectively.
At the other end of the spectrum are one-time technical experts who may possess superior industry knowledge but lack arbitration experience. As Pustay noted, “with those experts, obviously you cannot look so much at how he would perform at the hearing because you don’t know.” This uncertainty requires counsel to provide much more guidance and support throughout the process.
Selection involves balancing multiple factors: technical competence, arbitration experience, communication skills, and cost considerations. Fees range dramatically from $1,000 to $150,000 per engagement, depending on complexity, reputation, firm size, and whether the expert represents a major consulting firm or independent practitioner.
Bigovic offered a counterintuitive insight: automatically selecting “big stars” can backfire. Highly sought-after experts sometimes become “sloppy” and less committed to individual cases, particularly when they’re handling multiple arbitrations simultaneously. She recommends experts who have transitioned from major consulting firms like the Big Four to independent practice, combining technical expertise with dedicated attention to each case.
The market dynamics also vary significantly by expertise type. Financial experts, particularly in quantum analysis, operate in a competitive market with established players and relatively standardised approaches. Technical experts in niche industries, however, may be harder to locate, sometimes requiring “Googling exercises” to identify appropriate candidates. Client companies often prove invaluable in these searches, as they understand their industries and know respected professionals who might serve as effective experts.
Mixed Tribunals: The Optimal Solution
The panel reached consensus that mixed tribunals combining legal and technical expertise represent the optimal approach to modern arbitration challenges. “If you have that mix, then you might really get the best of both worlds because sometimes lawyers and non-lawyers do seem to speak different languages,” explained Bigovic, highlighting the communication barriers that often emerge between legal and technical professionals.
This approach addresses several persistent challenges in international arbitration. Lawyers ensure procedural security and proper application of legal standards, whilst technical experts provide substantive understanding of complex industry issues. The presence of both perspectives on a tribunal helps bridge the gap between legal reasoning and technical reality.
Mixed tribunals prove particularly valuable in cases involving sophisticated technical disputes where purely legal analysis would miss crucial industry context. Construction disputes involving delays, engineering failures, or complex manufacturing processes benefit enormously from having arbitrators who understand both the legal framework and the technical realities involved.
However, implementing mixed tribunals requires careful consideration of arbitrator selection and case management. The legal members must respect the technical expertise of their colleagues, whilst technical arbitrators need sufficient legal grounding to participate meaningfully in procedural decisions and legal analysis. The most successful mixed tribunals develop collaborative approaches where each member contributes their expertise whilst remaining open to perspectives from other disciplines.
The Future
The future of non-lawyer participation in arbitration appears bright, with expanding opportunities across multiple domains. Risvas strongly encouraged non-lawyer involvement: “I would highly encourage experts in different fields to engage with arbitration because they will benefit from it and contribute value.” This mutual benefit extends beyond individual cases to the broader development of arbitration as an effective dispute resolution mechanism.
However, the Moderators maintained important distinctions about appropriate roles. While expert testimony and specialised arbitrator positions offer viable pathways for non-lawyers, the roles of counsel and tribunal chairs should generally remain with lawyers who possess the procedural knowledge and legal training necessary for case management and legal analysis.
The technology sector presents particular opportunities as digital transformation creates new types of disputes requiring technical expertise that traditional legal education doesn’t provide. Similarly, environmental disputes, infrastructure projects, and emerging industries like renewable energy will likely require arbitrators and experts with deep technical knowledge combined with arbitration experience.
Professional development pathways for non-lawyers continue to evolve. LLM programmes in arbitration provide crucial legal grounding whilst preserving technical expertise. Professional associations offer training courses specifically designed for experts. The key lies in understanding that successful participation requires commitment to learning both technical and procedural aspects of the arbitration process.
Conclusion
As Zivkovic concluded, “there is room for everyone in international arbitration, whether lawyer or non-lawyer.” The key lies in understanding respective roles and preparing for arbitration’s procedural demands whilst recognising that both technical expertise and legal process remain essential.
