Earlier this week, we co-hosted a seminar with Khawar Qureshi QC from Serle Court on Damages in International Arbitration at Middle Temple Hall, London. At the seminar there were presentations from:
- Khawar Qureshi QC (Serle Court), on the legal background of damages in international arbitration;
- Domitille Baizeau (LALIVE), on the differences between common law and civil law with respect to damages; and
- Bruno Augustin (Haberman Ilett), on the expert’s viewpoint of damages.
These presentations were followed by an open-floor debate chaired by Lord Hoffman.
The seminar provoked some lively discussion, particularly around the use of Tribunal-appointed experts. Were they worth the additional cost to the parties? Do they provide a more independent assessment of damages that the Tribunal can rely upon? Does their appointment remove the need for the Tribunal to understand often complex damages models?
There is clearly a tension in the arbitration world on these points. Several solutions were put forward at the seminar, including:
- the appointment of industry experts or accountants to Tribunal panels;
- encouragement of the Tribunal to drop hints as to their initial views on damages at an early stage, encouraging experts to re-consider their damages quantification and remove potential over or under statement of their figures; and
- in the case of bifurcation, replacing the tribunal panel between the liability and damages phases, employing accountants or those with financial or industry expertise to help determine damages.
Many of the audience members argued their corner on these points and there was not universal acceptance in the room of any of these suggestions. What is clear, though, is that there is an appetite for change. We thank everyone for attending the event and we look forward to being part of the movement to achieve that change.