When resolving a dispute requires one or more technical questions to be answered, a lawyer cannot dispense with requesting a court-appointed expert assessment. The judge needs specialist knowledge to understand the technical issues underlying the judgment. Although expert evidence is common in domestic proceedings, matters become more complex when the assessment has a cross-border or international dimension.
An expert opinion or report is described as cross-border when it concerns a transnational dispute. Various situations arise: one party is foreign or lives abroad; an expert appointed by a foreign court in proceedings before it carries out some operations in France or Portugal; a French or Portuguese court needs a foreign expert to perform all or part of the assignment; the subject matter of the dispute is wholly or partly located in another State, requiring work abroad; or the report is to be used by a court in another Member State. Some disputes are international because the people affected by the disputed events are located in several States.
Within the European Union, Regulation (EC) no. 1206/2001 can provide a framework for an expert assessment in one Member State at the request of a court in another. In principle, the request is sent directly between courts. The requesting court may also take evidence directly in another Member State. In practice, however, the regulation is rarely used because it substantially lengthens expert proceedings. Above all, European case law allows experts to travel directly to another Member State.
In 2013, in the ProRail judgment, the Court of Justice of the European Union held that an expert may travel to another Member State to perform part of an assignment, provided there is no need for recourse to public coercive powers. More specifically, it accepted that the regulation’s procedures need not be used where another route is simpler, more effective and faster, unless the assessment could affect the public powers of the State where it is to take place. That may be the case for work at premises connected with public authority or restricted to authorised persons. There are therefore ample opportunities for cross-border assessments outside that regulation, which consequently appears almost obsolete. In a France–Portugal dispute, the main issues are accordingly the choice of competent court and whether a French expert’s report can be “recognised” by a Portuguese court, or vice versa.
A lawyer may face two procedural situations. In proceedings on the merits, the court competent to determine the merits can also order an expert assessment. The position differs for evidence sought before any trial. For European disputes, Article 35 of the Brussels I Regulation allows “provisional, including protective, measures available under the law of a Member State to be requested from the courts of that State even where the courts of another Member State have jurisdiction over the merits”. In that case, the parties may choose the court appointing the expert in the claimant’s or defendant’s country. However, no principle requires a French judge to recognise a Portuguese report, or vice versa: the Brussels I mechanism for recognition of judgments does not apply to expert reports. A report is not binding on the national judge, who remains free to assess it like other evidence under either French or Portuguese law. A Portuguese report respecting the fundamental principles of expert evidence may therefore be admitted by a French court, which freely assesses its weight. Nevertheless, in most cases a judge is likely to give greater consideration to a report prepared by an expert from the judge’s own country. This also avoids translation and its potentially substantial costs. Where possible, a lawyer seeking an expert assessment as a provisional measure should therefore favour the court competent to determine the merits.
Dr. Pedro Emanuel de OLIVEIRA
Lawyer