HomeWebcastProving and Determining Damages in International Arbitration: Methods, Trends and Best Practices
Online CLE International Arbitration CLE

Proving and Determining Damages in International Arbitration: Methods, Trends and Best Practices

Live Webcast Date: Thursday, October 24, 2019 from 12:00 pm to 2:00 pm (ET)
Alternative Dispute Resolution (CLE)Recording

Online CLE International Arbitration

Join us for this Knowledge Group Online CLE International Arbitration Webinar. As the international arbitration landscape continues to shift, accurately proving and determining damages in international arbitration proceedings calls for an intricate and detailed consideration by the tribunal, the parties, and valuation experts. Unprecedented changes and developments pose challenges and opportunities with new awards and significant court decisions rushing past.

With all the rising legal issues, ongoing trade dynamics, and the continuously evolving guidelines and principles in proving and determining damages, it becomes more important for arbitrators to be in the know of the latest trends and developments surrounding this area of law. It is also significant to reinstate and apply all the lessons learned on previous arbitration proceedings to prove and determine damages more efficiently.

Join a panel of key thought leaders and professionals assembled by The Knowledge Group as they bring the audience to a road beyond the basics of proving and determining damages in International Arbitration and as they delve into the depth-analysis of the current trends and updates in this area of law. Speakers will also provide the audience with practical strategies, methods and best practices in the development and presentation of damages evidence in arbitration proceedings.

This webcast will discuss the following key provisions:

  • Legal and Regulatory Framework of International Arbitration
  • Current Issues in International Arbitration
  • Most Notable Cases and Court Decisions
  • Risks and Pitfalls to Avoid with Fact Witnesses and Experts
  • Practical Tips for Winning Your Cases
  • International Arbitration in 2020: What to Expect

Agenda

SEGMENT 1:
Craig S. Miles, Partner
King & Spalding

  • Bifurcation of quantum from liability - pros and cons
  • If no bifurcation, the length of time to devote to damages relative to the overall case (e.g., % of opening statement time, how/whether to use fact witnesses to "sex up" the damages case, etc.)
  • Effective direct presentations by own side's experts (including multiple experts if appropriate), and effective cross-examination of other side's experts
  • The oft-overlooked question of causation and its impact on quantum

SEGMENT 2:
John Michael McNutt, Senior Litigation Advisor & Of Counsel
Lazareff Le Bars

  • Damages in international commercial arbitration- Common law vs Civil law commercial contract disputes
    • the governing law of the contract impact on methods of calculating damages
    • ‘but for’ lost profit vs. lost chance/opportunity modeling (including indirect or consequential damages)
    • Claimant’s burden of proof implies a defense of a damages calculation versus Respondent’s flexibility to limit damage by attacking validity of assumptions & methodology
  • Identification and formulation of proper assumptions, including a confirmation of the validity of assumptions provided by legal counsel:
    • Assumptions provided by counsel must be defensible
    • Assumptions should be supported by witness statements in addition to contemporaneous evidence
    • Use of an industry expert for assumptions relied upon by damages expert: risks & benefits
    • Assessment of assumptions together with sources of risk & uncertainty in calculations with a view to challenges, including sensitivity of model to one of more assumptions (including discount rate and elements thereof).
    • Identifying likely ‘unfavorable facts’ to be raised by opposition & credible responses to validate proper assumptions early in modeling process
  • Necessity to understand audience & need for that audience to substantiate the basis of an damages award
    • The Arbitration Panel is the audience & research of those specific arbitrators past decisions and views is relevant when picking an expert & when modeling
    • The Need for ensuring model is not complex and to be understood by non-finance persons
    • Use of an industry expert for assumptions relied upon by damages expert: risks & benefits

SEGMENT 3:
Glenn R. George, Ph.D., Partner
Bates White

  • International arbitrations really are different from US litigation, even for damages experts
  • Crafting credible and internally consistent but-for scenarios is the sine qua non of good economic expert work
  • The quantum expert must accept the unfavorable together with the favorable in crafting damages scenarios
  • Transparently identifying assumptions together with sources of risk and uncertainty in one’s calculations is invaluable, especially in an arbitration setting
  • Sensitivity analysis (e.g., to show how different discount rates would affect the results of a net present value calculation) is a great way to accomplish this

SEGMENT 4:
Paul Zurek, Principal
Cornerstone Research

  • Damages Methodology
  • Calculating Damages
  • Cash Flow Analysis and Economic Methodologies

Who Should Attend

  • Corporate Attorneys
  • International Arbitrators
  • Legal Counsel
  • Cross-Border Litigation Attorneys
  • Legal Adviser
  • Dispute Resolution Mediators
  • Multinational Companies
  • Public and Private Companies
  • Other interested/related Professionals

Online CLE International Arbitration

SEGMENT 1:
Craig S. Miles, Partner
King & Spalding

  • Bifurcation of quantum from liability - pros and cons
  • If no bifurcation, the length of time to devote to damages relative to the overall case (e.g., % of opening statement time, how/whether to use fact witnesses to "sex up" the damages case, etc.)
  • Effective direct presentations by own side's experts (including multiple experts if appropriate), and effective cross-examination of other side's experts
  • The oft-overlooked question of causation and its impact on quantum

SEGMENT 2:
John Michael McNutt, Senior Litigation Advisor & Of Counsel
Lazareff Le Bars

  • Damages in international commercial arbitration- Common law vs Civil law commercial contract disputes
    • the governing law of the contract impact on methods of calculating damages
    • ‘but for’ lost profit vs. lost chance/opportunity modeling (including indirect or consequential damages)
    • Claimant’s burden of proof implies a defense of a damages calculation versus Respondent’s flexibility to limit damage by attacking validity of assumptions & methodology
  • Identification and formulation of proper assumptions, including a confirmation of the validity of assumptions provided by legal counsel:
    • Assumptions provided by counsel must be defensible
    • Assumptions should be supported by witness statements in addition to contemporaneous evidence
    • Use of an industry expert for assumptions relied upon by damages expert: risks & benefits
    • Assessment of assumptions together with sources of risk & uncertainty in calculations with a view to challenges, including sensitivity of model to one of more assumptions (including discount rate and elements thereof).
    • Identifying likely ‘unfavorable facts’ to be raised by opposition & credible responses to validate proper assumptions early in modeling process
  • Necessity to understand audience & need for that audience to substantiate the basis of an damages award
    • The Arbitration Panel is the audience & research of those specific arbitrators past decisions and views is relevant when picking an expert & when modeling
    • The Need for ensuring model is not complex and to be understood by non-finance persons
    • Use of an industry expert for assumptions relied upon by damages expert: risks & benefits

SEGMENT 3:
Glenn R. George, Ph.D., Partner
Bates White

  • International arbitrations really are different from US litigation, even for damages experts
  • Crafting credible and internally consistent but-for scenarios is the sine qua non of good economic expert work
  • The quantum expert must accept the unfavorable together with the favorable in crafting damages scenarios
  • Transparently identifying assumptions together with sources of risk and uncertainty in one’s calculations is invaluable, especially in an arbitration setting
  • Sensitivity analysis (e.g., to show how different discount rates would affect the results of a net present value calculation) is a great way to accomplish this

SEGMENT 4:
Paul Zurek, Principal
Cornerstone Research

  • Damages Methodology
  • Calculating Damages
  • Cash Flow Analysis and Economic Methodologies

Online CLE International Arbitration

Online CLE International Arbitration

Craig S. MilesPartnerKing & Spalding

Craig Miles is a partner in the Houston office of King & Spalding’s International Arbitration Group. He primarily represents foreign investors in litigation with host governments.  Mr. Miles has first- or second-chaired dozens of arbitral hearings involving disputes throughout the world, with particularly strong experience in the energy, mining and infrastructure sectors.  Mr. Miles is also regularly called upon to handle the damages aspects of clients’ most significant matters.  He has for years been highly ranked in publications such as Chambers, and in 2011 was named to Global Arbitration Review’s45 Under 45” list of the leading international arbitration practitioners worldwide.  Mr. Miles frequently speaks and publishes on international arbitration issues.  In addition, he is co-editor of the Journal of Damages in International Arbitration and Quantum Quarterly: The Damages Newsletter.

Online CLE International Arbitration

Paul ZurekPrincipalCornerstone Research

Paul Zurek specializes in matters related to markets, securities litigation, risk management, valuation, and complex data analysis. He has submitted expert reports and declarations and testified in arbitration and regulatory investigations. In addition to serving as an expert, Dr. Zurek leads large teams in government and regulatory inquiries, civil litigation, and international arbitration. He has supported academic and industry experts at all stages of litigation, including trial.

Dr. Zurek’s econometric and financial expertise spans a range of industries, including investment management and financial institutions, technology, telecommunications, and transportation.

Online CLE International Arbitration

John Michael McNuttSenior Litigation Advisor & Of CounselLazareff Le Bars

Michael is a Senior Litigation Advisor & Of Counsel with more than 20 years practice in investment and commercial arbitration.

Michael McNutt has been assisting in settlement of investment disputes and complex arbitrations for over 20 years in the World Bank (ICSID), ICC, UNCITRAL and as well as in domestic proceedings in UK High Court, French, United States, and New Zealand courts.

Michael has significant experience in relevant offshore jurisdictions, including most UK offshore centers (IOM, Jersey, BVI, Cayman Islands, etc.), Caribbean jurisdictions, Malta, Cyprus and the United Arab Emirates during the same period. Relevant investor State cases in which Michael was lead strategist together with lead counsel include Noble Ventures v Romania, EDF v Romania, Emmis Radio v Hungary, Novera v Bulgaria, Mezzanine & Danubius v Hungary and a pending Strasbourg case (and related investment treaty claim) against Hungary. Michael is also actively involved in commercial litigation and enforcement cases involving UAE, Senegal, United States, France, Italy, Ireland, Bulgaria and Isle of Man, Cayman Islands, Cyprus and others.

A former US and EU-based investment banker as well as a manager/director based in Europe with two of the ‘Big Four’ accountancy firms, Michael possesses extensive knowledge and experience in the formulation of investment strategies (including PPP or other State Aid schemes), post-acquisition restructuring and its implementation, as well as accountancy (IAS, US GAAP etc.) and valuations/damages assessment.

Michael’s investment and privatisation advisory experience involving both Investor – State contracting as well as commercial merger & acquisitions in transition and developing economies is relevant in particular for understanding the financial basis for the dispute and quantification of damages. Prior to the commencement of a dispute, Michael often works with the client to confirm an estimated quantum of damages that may be used as a benchmark for settlement discussions. In addition, and in the event settlement is not possible, Michael routinely assists testifying damages experts in the formulation of the damages model, collection and providing evidence to support the model collected from the client and ensuring that such evidence (including witness evidence) complements the evidence used to support the legal claim prepared by legal counsel.

Michael has been particularly effective in providing valuable insight for the construction of the settlement and litigation strategy to ensure that evidence and witness collection is relevant, time efficient and cost effective for clients. His experience and understanding how transition economies developed with foreign aid and attraction of investments combined with such dispute- sensitive witness mapping and evidence collection supports the legal strategy with the strong evidentiary tools and insight into the origin of the dispute and mitigating or complicating factors.

In certain instances, Michael has acted as interim manager of the domestic legal entity which may be required to litigate as claimant and to ensure that corporate managers can be redeployed by firms which aids in limiting the risk of intimidation or harassment of management that may occur during the dispute. As a result, Michael has also testified before courts and arbitration panels on various occasions in support of claims or in the defense against claims.

His negotiation skills are relevant and Michael has been particularly effective in settlement of disputes related to investments involving a partner from a more mature market dealing with either governments or firms locally executing a commercial arrangement in a dynamic local legal environment (i.e. Hungary, Romania, Mongolia, Brazil, Russia, etc.).

Michael is responsible for assisting clients in preparing case investment budgets, managing the execution of case investment model and where required to assist in the payment of all 3rd party experts, administration and other expenses. Working therefore systematically with the client, support for the claiming of litigation expenses and confirmation to the client for internal or audit purposes of dispute expenditure and forecasted expenditure is possible and can greatly reduce the time that client management or in-house counsel needs to spend on such administrative matters.

Online CLE International Arbitration

Glenn R. George, Ph.D.PartnerBates White

Glenn R. George is a seasoned leader and advisor in the global energy and related infrastructure sectors as well as the international arbitration arena. Drawing on his background as an engineer, economist, and business manager, he applies his expertise in strategy, policy, regulation, technology, finance, and risk assessment to business challenges facing companies, regulators, and investors. Dr. George has significant experience in estimating damages in complex commercial litigation and international arbitration matters, including those related to contract disputes, construction delays, cross-border investments, intellectual property disputes, and expropriations. Dr. George has provided expert testimony under ICC and ISCID rules regarding the quantum of damages in numerous matters, such as a construction dispute involving a major European nuclear facility and a contract dispute regarding the representations and warranties made at the time of sale of a large electric power plant in North America.


Click Here to Read Additional Material

Online CLE International Arbitration

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast

Prerequisite:
   General knowledge of international arbitration laws

Course Code:
   148357

NY Category of CLE Credit:
   Skills

Total Credits:
    2.0 CLE

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About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

King & Spalding LLP is an American international corporate law firm that is headquartered in Atlanta, Georgia and with offices located in North America, Europe, and Asia. With over 1,000 lawyers in 20 offices globally, King & Spalding is consistently listed as one of the most prestigious law firms in the world.

Website: https://www.kslaw.com/

Cornerstone Research provides economic and financial consulting and expert testimony in all phases of complex disputes and regulatory investigations. The firm has 700 staff and offices in Boston, Chicago, London, Los Angeles, New York, San Francisco, Silicon Valley, and Washington DC.

Website: https://www.cornerstone.com/

Lazareff Le Bars is a boutique firm specialized in international dispute resolution.

Our teams are involved in institutional and ad hoc arbitration, spanning from traditional and complex legal proceedings, institutional mediation and conciliation, to alternative dispute resolution (dispute board, expert opinions, etc.).

To this day, our professionals have been involved in over 250 ad hoc and institutional arbitration proceedings (including ICC, LCIA, ICSID, CCJA, UNCITRAL, ICDR/AAA, CEPANI, SIAC, HKIAC, DIAC, MIAC).

Our lawyers have a thorough understanding of ADR (alternative dispute resolution) and have successfully led several mediations and conciliations, including disputes involving governments and state entities.

Our lawyers draw on their in-depth experience to allow each client to settle their dispute amicably and encourage parties, when appropriate, to maintain their business relationships.

Website: http://lazareff-lebars.com/

Bates White is an economic consulting firm that provides advanced, empirically-based economic, financial, and econometric analysis to law firms, corporations, and government agencies. We advise clients on litigation, case development and strategy, assessing and analyzing the relative strengths of economic arguments, and determining optimal strategies for discovery, motions, trial preparations, and settlement.

Website: https://www.bateswhite.com/

Craig Miles is a partner in the Houston office of King & Spalding’s International Arbitration Group. He primarily represents foreign investors in litigation with host governments.  Mr. Miles has first- or second-chaired dozens of arbitral hearings involving disputes throughout the world, with particularly strong experience in the energy, mining and infrastructure sectors.  Mr. Miles is also regularly called upon to handle the damages aspects of clients’ most significant matters.  He has for years been highly ranked in publications such as Chambers, and in 2011 was named to Global Arbitration Review’s45 Under 45” list of the leading international arbitration practitioners worldwide.  Mr. Miles frequently speaks and publishes on international arbitration issues.  In addition, he is co-editor of the Journal of Damages in International Arbitration and Quantum Quarterly: The Damages Newsletter.

Paul Zurek specializes in matters related to markets, securities litigation, risk management, valuation, and complex data analysis. He has submitted expert reports and declarations and testified in arbitration and regulatory investigations. In addition to serving as an expert, Dr. Zurek leads large teams in government and regulatory inquiries, civil litigation, and international arbitration. He has supported academic and industry experts at all stages of litigation, including trial.

Dr. Zurek’s econometric and financial expertise spans a range of industries, including investment management and financial institutions, technology, telecommunications, and transportation.

Michael is a Senior Litigation Advisor & Of Counsel with more than 20 years practice in investment and commercial arbitration.

Michael McNutt has been assisting in settlement of investment disputes and complex arbitrations for over 20 years in the World Bank (ICSID), ICC, UNCITRAL and as well as in domestic proceedings in UK High Court, French, United States, and New Zealand courts.

Michael has significant experience in relevant offshore jurisdictions, including most UK offshore centers (IOM, Jersey, BVI, Cayman Islands, etc.), Caribbean jurisdictions, Malta, Cyprus and the United Arab Emirates during the same period. Relevant investor State cases in which Michael was lead strategist together with lead counsel include Noble Ventures v Romania, EDF v Romania, Emmis Radio v Hungary, Novera v Bulgaria, Mezzanine & Danubius v Hungary and a pending Strasbourg case (and related investment treaty claim) against Hungary. Michael is also actively involved in commercial litigation and enforcement cases involving UAE, Senegal, United States, France, Italy, Ireland, Bulgaria and Isle of Man, Cayman Islands, Cyprus and others.

A former US and EU-based investment banker as well as a manager/director based in Europe with two of the ‘Big Four’ accountancy firms, Michael possesses extensive knowledge and experience in the formulation of investment strategies (including PPP or other State Aid schemes), post-acquisition restructuring and its implementation, as well as accountancy (IAS, US GAAP etc.) and valuations/damages assessment.

Michael’s investment and privatisation advisory experience involving both Investor – State contracting as well as commercial merger & acquisitions in transition and developing economies is relevant in particular for understanding the financial basis for the dispute and quantification of damages. Prior to the commencement of a dispute, Michael often works with the client to confirm an estimated quantum of damages that may be used as a benchmark for settlement discussions. In addition, and in the event settlement is not possible, Michael routinely assists testifying damages experts in the formulation of the damages model, collection and providing evidence to support the model collected from the client and ensuring that such evidence (including witness evidence) complements the evidence used to support the legal claim prepared by legal counsel.

Michael has been particularly effective in providing valuable insight for the construction of the settlement and litigation strategy to ensure that evidence and witness collection is relevant, time efficient and cost effective for clients. His experience and understanding how transition economies developed with foreign aid and attraction of investments combined with such dispute- sensitive witness mapping and evidence collection supports the legal strategy with the strong evidentiary tools and insight into the origin of the dispute and mitigating or complicating factors.

In certain instances, Michael has acted as interim manager of the domestic legal entity which may be required to litigate as claimant and to ensure that corporate managers can be redeployed by firms which aids in limiting the risk of intimidation or harassment of management that may occur during the dispute. As a result, Michael has also testified before courts and arbitration panels on various occasions in support of claims or in the defense against claims.

His negotiation skills are relevant and Michael has been particularly effective in settlement of disputes related to investments involving a partner from a more mature market dealing with either governments or firms locally executing a commercial arrangement in a dynamic local legal environment (i.e. Hungary, Romania, Mongolia, Brazil, Russia, etc.).

Michael is responsible for assisting clients in preparing case investment budgets, managing the execution of case investment model and where required to assist in the payment of all 3rd party experts, administration and other expenses. Working therefore systematically with the client, support for the claiming of litigation expenses and confirmation to the client for internal or audit purposes of dispute expenditure and forecasted expenditure is possible and can greatly reduce the time that client management or in-house counsel needs to spend on such administrative matters.

Glenn R. George is a seasoned leader and advisor in the global energy and related infrastructure sectors as well as the international arbitration arena. Drawing on his background as an engineer, economist, and business manager, he applies his expertise in strategy, policy, regulation, technology, finance, and risk assessment to business challenges facing companies, regulators, and investors. Dr. George has significant experience in estimating damages in complex commercial litigation and international arbitration matters, including those related to contract disputes, construction delays, cross-border investments, intellectual property disputes, and expropriations. Dr. George has provided expert testimony under ICC and ISCID rules regarding the quantum of damages in numerous matters, such as a construction dispute involving a major European nuclear facility and a contract dispute regarding the representations and warranties made at the time of sale of a large electric power plant in North America.

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