10 May 2017
On Tuesday, Liz Perks contributed to a panel discussion organised jointly by Vinson & Elkins, Young ITA and ArbitralWomen, on the topic of “Damages in International Arbitration: Getting the Most Out of Your Expert”. Liz joined expert economist Clara Segurola, principal at Nera Economic Consulting, and Juliet Blanch, arbitrator at Juliet Blanch Arbitration, who all shared their experiences of working as and with independent experts in the context of arbitration. This was followed by an open-floor debate.
During their introductions, the panellists agreed on the importance of the relationship between advocates and experts, and the significance of involving the expert in all stages of the dispute. As part of the event, Liz had been asked by the event’s organiser, Louise Wood of Vinson & Elkins, to address a particularly interesting question: how can you avoid experts with opinions that pass ‘like ships in the night’?
Liz shared that, in her opinion, this tends to be as a result of differing instructions between the experts, such as on valuation dates or factual matters, and if experts do not address the opposing side’s scenario it can be both unhelpful to the Tribunal and also risky for the client.
Liz encouraged counsel in the room to always consider instructing their expert to provide a quantification based on the opposing expert’s assumptions. One way of achieving this, she said, is for the expert to address the opposing expert’s case in the joint statement (where there is one). She gave an example of one case where she was particularly proud of the joint statement, as the experts agreed on the quantification of loss under different legal and factual assumptions to be determined by the Tribunal.
Liz also explained that she believes that a shared model between the experts, where possible, would be a helpful way for the Tribunal to understand the effect of differing assumptions. Clara confirmed that she has had positive experiences of this on certain matters too. In lieu of this, a sensitivity analysis could provide a ‘menu’ of damages for the Tribunal to choose from, depending on their legal findings. Juliet commented that this would also likely lead to quicker awards being given, as the Tribunal would not have to order further calculations to be undertaken.
A lively debate then followed, and the evening ended with an interesting final question on whether experts’ differences in quantum were due to justifiable differences in opinion or experts not being independent. Both Liz and Clara agreed that this depended on the individual experts, with a mix of both being seen; often as a result of experts coming from different legal systems with different expectations of their experts. Juliet commented that it is often clear to an arbitrator where an expert is being pressed into giving an opinion that they are not comfortable to give and that, where this is the case, less reliance is given to that expert’s opinion.
Overall, it was an enjoyable evening where the various perspectives of the panel and the audience brought a new and beneficial context to all when considering the use of experts in arbitration.
By Lexi Boyes, senior associate