International Commercial Arbitration: Expert Testimonies, Damages, and Legal Issues in the 2020 Landscape
With ever-evolving global economic crises and emerging changes on the horizon, international commercial arbitration disputes are expected to continuously arise on the landscape. Topics such as financial volatility and related public policies, clouded by differing political views, lead the challenges. More significantly, damage quantification using expert witnesses in international disputes is now becoming more popular. Arbitral institutions have been actively implementing new rules and innovative practices involving this trend.
These pressing issues call for companies’ critical and timely considerations involved in international commercial lawsuits.
In this LIVE Webcast, arbitration experts John Michael McNutt (Lazareff Le Bars) and Glenn R. George (Bates White) will provide the audience with an in-depth analysis of the recent international commercial arbitration trends and legal issues. They will discuss the potentials and risks of using expert testimony in quantifying damages. Speakers will also present best practices in the continuously evolving legal landscape.
- Legal and Regulatory Trends and Developments
- Current Legal Issues in International Arbitration
- Notable Court Rulings
- Risks and Pitfalls to Avoid with the Use of Expert Testimonies
- Best Practices in Quantifying Damages
- Practical Tips and Strategies
- What Lies Ahead
Lazareff Le Bars
- Methodology in determining quantum of damages relationship to Claimant’s burden of proof
- 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
- the governing law of the contract impact on methods of calculating damages (direct & certain damages- civil law)
- ‘but for’ lost profit vs. lost chance/opportunity modeling (including indirect or consequential damages)
- Use of sensitivity analysis – pros and cons
- Identification and formulation of proper assumptions, including a confirmation of the validity of assumptions provided by legal counsel:
- Reliance without confirmation of assumptions provided by counsel is dangerous
- DCF modelling and related assumptions- witness statements together with evidence is relevant (potential pitfalls)
- Use of an industry expert to support DCF modelling (risks & benefits)
- Early analysis of likely ‘unfavorable facts;, disclosure risk and formulation of credible responses
- Relevance of cost submissions as Respondent’s principal damages claim
- Third party financing terms relevant to cost submissions
- Necessity for transparency & waiver of privilege or work product doctrine
- Due process requires right to confirm the accuracy and validity of costs claimed by the parties and is not the discretion of the Tribunal (Tribunal discretion is to allocate cost and determine reasonableness but not initially quantify)
- Risk of annulment or set aside is cost award is improper
- Necessity to understand Tribunal & to require Tribunal to substantiate the basis and reasoning of a cost award
- Research past awards and other information related to Tribunal members;
- Requirement for models to be designed and articulated for non-finance persons
- Consult with your experts sooner rather than later—it’s never too soon to begin that interaction
- Be explicit with your experts regarding how your international commercial arbitration differs from US litigation, potentially including standards for causation and damage calculation
- Crafting credible and internally consistent but-for scenarios is truly central to quantifying damages reliably
- The quantum expert must accept the unfavorable together with the favorable in crafting damages scenarios
- Transparently in identifying assumptions together with sources of risk and uncertainty in one’s calculations is invaluable, especially in an arbitration setting
- Explicitly including sensitivity analysis (e.g., to show how different discount rates would affect the results of a net present value calculation) is one key way to improve transparency and reliability.
Who Should Attend:
- International Commercial Arbitration Lawyers
- Dispute Resolution Lawyers
- Corporate Lawyers
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.
Michael is a Senior Litigation Advisor & Of Counsel with more than 20 years practice in investment and commercial arbitration. …
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, 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 on 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.
Glenn R. George is a seasoned leader and advisor in the global energy and related infrastructure sectors as well as …
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Method of Presentation:
General knowledge of international commercial arbitration
NY Category of CLE Credit:
Areas of Professional Practice
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About Lazareff Le Bars
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.
About Bates White
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.