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real world expert witness perspective in international arbitration

Tuesday 30 October, 2012

I had breakfast with John Levitske of Duff & Phelps who talked about REAL WORLD EXPERIENCES IN INTERNATIONAL ARBITRATION: THE EXPERT WITNESS’ PERSPECTIVE, which was sponsored by the Chicago International Dispute Resolution Association.  John provided expert witness testimony in international arbitration hearings in Vienna, Stockholm, & New York city.  He served as an expert consultant for international arbitration in Amsterdam, Sault St. Marie, Paris, Montreal, & Dayton, where he would contribute to behind-the-scenes white papers.  It’s common for central & eastern European cases to be heard in Vienna, & for former Soviet countries in Stockholm.

International arbitration typically deals with substantive issues, such as economic damages, (“quantum disputes”), lost profits & diminution in value.  Post-merger & acquisition transaction disputes in valuations, accounting, & general agreements are also addressed.  Proceedings are either in “American/English” style, with direct testimony, cross examination, & rebuttal testimony, or tandem style with expert witness conferencing/”hot-tubbing,” or occasionally combination of American & tandem styles.  Experience in both venues helps.  For example, discovery is an issue.  Some Europeans are not familiar with American methods.

There are a number of real-world considerations dealing with the medium & the presentation:

Medium;

Forum

  • Confidentiality?  There is no public record for some arbitration hearings & because arbitration is different than a court hearing, there is less incentive for clear opinions.
  • Expediency?
  • Specialized expertise?
  • Enforceability?
  • Procedural flexibility?
  • Facilities?  There is a hotel in Stockholm which has a business center specifically for arbitrators & expert witnesses.

Language

  • English + local language?
  •   arbitrators
  •   experts
  •   parties
  •   attorneys
  • Interpreters?
  • Court reporters?
  • Technical terms?

Logistics

  • Use of demonstratives?
  • Hearing room layout
  •   visual aids?
  •   microphones?
  •   distance from
  •     arbitration panel?
  •     counsel?
  •      other experts?
  • Will experts be put in the “bubble,” when they can’t speak with attorneys or clients?

Presentation;

Expert reports

  • Can they be supplemented?
  • Will a condensed summary overview be presented @ the hearing?
  • Are the expert reports a substitute for direct testimony?

Opinion basis

  • Was discovery available?
  • Should the expert attend testimony of other witnesses?

Scope of expert testimony

  • Will a direct expert-to-expert meeting occur pre-hearing without clients or attorneys to attempt to narrow the issues for the hearing, called “hot-tubbing”?
  • Will the arbitrators ask questions?

Attorneys must still manage client relations.  I found it interesting that arbitration panels will pose general open-ended questions to expert witnesses, such as “What are industry trends & best practices?”  There are some cultural differences between arbitration panels:

  • Austrians & Germans are strict constructionists, for whom words are everything.
  • The presence of female lead attorneys varies across countries.
  • Most participants think the world was built in their own image, & approach the exercise in this way.
  • Piercing corporate veils is common in America, but not elsewhere.
  • Some foreign parties are oblivious to American Generally Accepted Accounting Practices (GAAP).
  • The interpretation of contracts can vary across countries.  For example, headers have different weights in the UK.
  • Government authority in regulation differs across countries.

 

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