In Linsun Engineering Sdn Bhd v Shin Eversendai Engineering Sdn Bhd (“Linsun Engineering”), Wong Kian Kheong J decided, inter alia, that experts must ensure their ability and availability to give evidence at trial. While Wong Kian Kheong J’s decision does form part of Malaysian laws, its applicability to international arbitration must be analysed, which we do so below.
 
Below, we take a closer look at what this decision means for international arbitration.
 
When must Linsun Engineering be applied by arbitral tribunals?
 
The procedural law of the arbitration
Generally, the procedural law or lex arbitri of an arbitration is that of the arbitration’s seat¹. Hence, any arbitration where the seat is Malaysia is subject to the Arbitration Act 2005 (“AA 2005”).
 
In respect of expert witnesses, section 29 of the AA 2005² provides that:
 
“(1) Any party may with the approval of the arbitral tribunal, apply to the High Court for assistance in taking evidence.
 
(2) The High Court may order the attendance of a witness to give evidence or, where applicable, produce documents on oath or affirmation before an officer of the High Court or any other person, including the arbitral tribunal”
 
The application of Section 29 of the AA 2005 was considered by Lim Chong Fong J in Coneff Corporation Sdn Bhd v Vivocom Enterprise Sdn Bhd (Dr Eng Zi Xun Applicant) [2019] MLJU 1666. Paragraph 33 of the judgment provides:

“Generally, I am of the view that the principal governing considerations to justify the issuance of a subpoena whether to produce a document or summon a witness under s. 29 of the Arbitration Act 2005 are relevancy and materiality. That notwithstanding if the subpoena has however been issued for a non-legitimate purpose or is oppressive, then the subpoena would be set aside. It is immaterial that the person subpoenaed is not a party in the arbitration proceedings” [emphasis added].

Section 29 makes no distinction between witnesses of fact and expert/opinion witnesses. Hence, the Court’s power to compel a witness to give evidence would apply to both. By clear implication, if there is no subpoena under Section 29 of the AA 2005, attendance before the arbitral tribunal cannot be compelled.
 
Thus, it is reasonably arguable that Linsun does not apply to arbitration, international or domestic. Linsun was decided in the context of the Rules of Court 2012, which regulates Malaysian civil procedure at the High Court level and below. Hence, in an arbitration where procedure is governed by the relevant arbitration rules and the law of the seat, it is difficult to see how Linsun could apply. In any event, an expert who fails to attend without lawful reasons would be in breach of contract with his/her appointing party, apart from adverse consequences of the non-attendance stigma to possible future appointments as an expert.
 
General practice in international arbitration proceedings
In the field of international arbitration, the implications appear limited. This is because the IBA Rules on the Taking of Evidence in International Arbitration,³ which are often adopted as a reference in international arbitration proceedings,⁴ set forth strict consequences in case an expert does not appear at the oral hearing without any valid reason. As such, according to Article 5(6) of the IBA Rules, “[i]f a Party-Appointed Expert whose appearance has been requested pursuant to Article 8.1 fails without a valid reason to appear for testimony at an Evidentiary Hearing, the Arbitral Tribunal shall disregard any Expert Report by that Party-Appointed Expert related to that Evidentiary Hearing unless, in exceptional circumstances, the Arbitral Tribunal decides otherwise.”
 
It is noteworthy that this is a “shall” provision and that the arbitral tribunal only has discretion when there are exceptional circumstances.⁵ It appears difficult to envision a situation in which these exceptional circumstances exist: either, there is a valid excuse, as would be the case when the expert falls sick just before the hearing and is unable to attend it, and then, the arbitral tribunal would either move the hearing to another date or, if there is no valid excuse, not move the hearing and instead disregard the expert report.
 
This rule in itself is sufficiently strong to “discourage” an expert from not being diligent. There is thus no need for any additional rule, as is now set forth in Linsun Engineering, as a party whose expert does not attend the oral hearing would already be severely penalized.
 
For further information on this topic please contact Mubashir bin Mansor, Skrine’s Dispute resolution partner (General Litigation) including international arbitration, and head of Skrine’s aviation practice (mbm@skrine.com, +60 12 215 1966), Dr. Harald Sippel, Head of Skrine’s European Desk (harald@skrine.com, +60 18 211 4958) or Vishnu Vijandran, Associate (vishnu.v@skrine.com, +60 12 677 4794).
 
Disclaimer: The information provided here does not, and is not intended to, constitute legal advice. All information is for general informational purposes only.

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