An ICSID tribunal has rejected an application to disqualify an expert witness and to exclude his expert report. The application was made in the context of an arbitration against Venezuela under the bilateral investment treaty (BIT) between Switzerland and Venezuela.

The claimants argued that Andrés Ricover, an expert witness appointed by Venezuela, should be disqualified, on the basis that the claimants had considered appointing Mr Ricover as a potential expert witness in the case and had sent him information and documents. The claimants argued that Mr Ricover had acquired knowledge of confidential information concerning their damages claim which he might have provided to Venezuela or used for the purposes of his expert report. The claimants asserted that this disqualified him from giving expert evidence on behalf of Venezuela and argued that his expert report should be removed from the record.

The tribunal first considered whether it had jurisdiction to decide the challenge. In accepting jurisdiction, the tribunal noted that its competence derived from its authority to decide on the admissibility of evidence under Article 34(1) of the ICSID Arbitration Rules.

In its ruling on the merits of the application, the tribunal noted that the claimants had not marked the information sent to Mr Ricover as confidential, nor had they made any other reservations as to its confidentiality. The tribunal further accepted that Mr Ricover had not accessed the information sent to him and therefore had no knowledge of its content. Accordingly, it rejected the application to disqualify Mr Ricover. However, the tribunal reserved the right to review its decision in the future, in case further evidence materialised which could support the claimants' position that there were doubts as to Mr Ricover's impartiality based on the information he had received.

This is a sensible decision in light of the circumstances before the tribunal. The claimants had sent the pack of information to Mr Ricover, before deciding to instruct someone else. Had the tribunal decided in favour of the claimants, this would leave open the possibility of one party "tainting" a number of experts in a particular field by providing them with information and deliberately cutting down the pool of experts available for instruction by their opposition. In an area of expertise where the pool is small, such an abuse could have significant and undesirable implications for the overall outcome of the arbitration.

Case: Flughafen Zürich AG and Gestión e Ingenería IDC SA v Bolivarian Republic of Venezuela (ICSID Case No. ARB/10/19).