Fifth Annual Damages in International Arbitration Conference – 16 September 2016

Washington Plaza Hotel
Washington, D.C.

Law and finance in international arbitral awards: on parallel tracks or a collision course?
All attendees will receive a copy of the most current issue of the Journal of Damages in International Arbitration.

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Financial Aid:
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FEE includes:
Written course materials, a copy of the most current issue of the Journal of Damages in International Arbitration, refreshments at breaks, luncheon, and a drinks reception following the program. The fee does not include accommodations.

Conference Agenda

Panel 1 – Valuation methods: do parties and Tribunals live in the “real” world?
•Is there a difference between how valuations are conducted by commercial parties (e.g., in M&A or project finance) versus arbitration / litigation?
•If so, what is the difference, why does it exist, and is it appropriate? Is it simply that Courts and Tribunals are years behind commercial practice?
•Evaluating methods adopted in recent decisions: comparables, cost-approach, and DCF for non-operating companies.
•How are political risk assessments conducted in real world transactions (i.e., how does the market value risk). How does this compare to the approaches taken in investment arbitration?
•How do you measure Country Risk Premium and what underlying economic, political, and social conditions drive it?

Moderator: James Searby
Panel: Manuel Abdala, Abby Cohen Smutny, Shreyas Jayasimha, Jimmy S. Pappas, George Ruttinger


Panel 2 – Are Standards of Compensation getting Lost in Translation?
•Is there a difference between “full reparation” / “full compensation” and “fair market value” or other valuation standards?
•Is it possible to translate legal terms into meaningful practices for valuation?  In other words, if told to measure damages on a “full reparation” basis, would a damages expert know what to do?
•What is “fair market value”?  What’s the difference between “market value” and “fair value”?  And between “fair value” for accounting and “fair value” for valuation?
•Is valuation objective or subjective?  Are subjective legal standards compatible with valuation standards?

Moderator: Christina Beharry
Panel: Timothy Nelson, Irmgard Marboe, Martin Valasek, José Alberro, Roula Harfouche


Panel 3 – Game theory: how do the incentives, processes, and psychology of ISDS affect damages outcomes?
•Are advocates gaming the arbitral process? Are experts used to “anchor” a value in the Tribunal’s mind?  Are they searching for facts to support a conclusion, rather than reaching conclusions based on facts?
•Is the party’s expert there to ensure the party’s position is well framed, or does the expert’s duty to the tribunal require more?
•What incentives are there to discourage expert advocacy and enhance independence and objectivity?
•How can instructions from lawyers / tribunals (or their experts) help to frame the approach taken by damages experts?
•The “chicken and egg” question  ̶  Do participants exaggerate positions because they believe the tribunal will split the claim?  Do tribunals split the claim because they believe the parties exaggerate their positions?
•How can tribunals influence experts to give them the “real answers”?  In other words, how can incentives be changed in order to arrive at the “right” result?
•How does third party funding affect the incentive structure in investment arbitration?
•Do tribunal appointed experts make the process more reasonable or more heated?

Moderator: Richard (Rory) Walck
Panel: Michael Nolan, Leonardo R. Giacchino, Alexandre de Gramont, Mick Smith, Geoffrey Senogles


Panel 4 – Mock Debate: “This House believes that any divergences between law and finance, reflected in investment arbitration awards, is entirely appropriate.”
•What are the main areas of divergence?
•Are these divergences inevitable?  Can they be minimized or reconciled?  Should they be?
•What effect do these divergences have on the outcome of damages awards?
•Is it appropriate to apply legal doctrines that increase or decrease the amount of damages calculated by valuation experts?
•Should tribunals have the power to value an asset or adopt analyses that were not advocated by the parties?

Moderator: Francisco Abriani
Panel: Hi-Taek Shin, Alexis Maniatis, Garrett Rush, Miriam Harwood, Craig Miles, Mark Kantor, Jean Kalicki


Schedule

08:00 – 09:00
Registration

Coffee and Tea upon arrival
09:00 – 09:15   Introduction
09:15 – 09:45
Keynote Speech

Professor Juan Fernández-Armesto
09:45 – 11:15
Panel 1

Valuation methods: do parties and Tribunals live in the “real” world?
11:15 – 11:45 Coffee/Tea Break
11:45 – 13:15
Panel 2

Are Standards of Compensation getting Lost in Translation?
13:15 – 14:15 Networking Luncheon
14:15 – 15:45
Panel 3

Game theory:
how do the incentives, processes, and psychology of ISDS affect damages outcomes?
15:45 – 16:15  Coffee/Tea Break
16:15 – 17:30
Panel 4

Mock Debate:
“This House believes that any divergences between law and finance, reflected in investment arbitration awards, is entirely appropriate.”
17:30 – 18:30  Cocktail Reception

Co-Chairs

Christina Beharry is an attorney in Foley Hoag’s International Litigation and Arbitration Practice in their Washington, D.C. office.  Her practice is focused on public international law, investor-state and commercial arbitration, and trade and investment policy.  Ms. Beharry has public and private sector experience in international arbitration proceedings conducted before panels administered by the ICSID, PCA, ICC and ad hoc tribunals under the UNCITRAL Arbitration Rules.  Her experience includes advising clients on complex financial matters related to the valuation of businesses, environmental damages and compensation for adverse human health impacts.

James Searby is Senior Managing Director in FTI Consulting’s economic and financial consulting practice in Washington, D.C.  He specializes in the assessment of quantum issues in contentious matters in both litigations in national courts and international arbitrations.  Mr. Searby’s primary expertise is in the field of valuation, whether of business, contracts, damages, intellectual property or financial assets.  He led FTI Consulting’s International Arbitration practice in the Asia Pacific region from 2011 through early 2015.  In April of 2015, he moved to Washington, D.C. to lead the build-up of the International Arbitration practice in that region.  The range of Mr. Searby’s industry experience encompasses telecommunications, oil and gas, chemicals, tobacco, infrastructure, healthcare, media, life insurance, retailing and banking.

Richard (Rory) E. Walck is a Partner and Co-founder of Global Financial Analytics LLC.  He has provided expert services on damages and valuation issues in arbitration and litigation for nearly forty years and has testified in ICSID, ICC, ICDR, UNCITRAL and ad hoc arbitral proceedings.  Mr. Walck holds multiple credentials in accounting, finance and valuation and has been consistently listed as one of the top international experts in Who’s Who Legal.

Keynote Speaker

Juan Fernández-Armesto is a professional arbitrator.  He has been President of the Spanish Securities and Exchange Commission (CNMV) (1996-2000), partner of Uria & Menéndez (1983-1996) and Chaired Professor of Commercial Law (1988-2009).  Since 2001 Mr. Fernández-Armesto has acted as sole arbitrator, co-arbitrator or chairman in more than 90 proceedings, including investment, commercial and construction arbitration.  He has acted as arbitrator in approximately 70 commercial arbitration, involving a wide array of disputes affecting sales of enterprises (misrepresentations, adjustment of price, accounting issues), shareholders’ agreements and joint venture contracts, agency and distributorship agreements, finance and banking agreements, hotel management agreements and other commercial contracts.  He has also been designated arbitrator in various construction disputes relating to dams, power plants, oil and gas pipelines, turnkey plant construction agreements and other infrastructure projects.

Faculty

Manuel A. Abdala is an Executive vice President with Compass Lexecon in the Washington, D.C. office.  He was previously a Director at LECG where he was co-chair of its international arbitration practice group.  Dr. Abdala has provided written and oral expert testimony in more than 120 international arbitration cases, many of them involving treaty disputes between private investors and governments on topics related to damage valuation, as well as opinions on government conduct vis-a-vis investors’ expectations and regulatory standards.  He also has substantial experience in commercial arbitration in shareholder disputes, competition clauses, property damages, and political risk insurance claims.  Dr. Abdala has conducted numerous works and studies for private companies and public institutions related to business valuation, damage analysis, and regulatory analysis of infrastructure projects in countries including Argentina, Brazil, Bulgaria, Canada, Egypt, India, Italy, Netherlands, New Zealand, the Philippines, Poland, Russia, South Korea, Turkey and the United States.

Francisco Abriani joined ICSID in August 2015.  He is Legal Counsel on one of the Case Management Teams.  Prior to joining ICSID, he worked with the law firm of Freshfields Bruckhaus Dering in Paris and New York.

José Alberro co-heads Cornerstone Research’s international arbitration and litigation practice.  His expertise focuses on applied economic and financial modeling across a variety of industries, with particular depth in oil and natural gas, petrochemicals, consumer goods, industrial inputs, and telecommunications.  He specializes in damages estimation in the context of international arbitration; mergers and antitrust; tariff design in network industries (electricity, natural gas transportation and distribution, water); and economic impact analysis.  Dr. Alberro has provided expert testimony in international arbitration on four continents, involving both investor-state and commercial disputes.  He has testified in proceedings under ICSID, UNCITRAL, ECT, and ICC rules.

Leonardo R. Giacchino is a Partner at Solutions Economics, LLC.  Dr. Giacchino has provided testimony on damages, valuation issues and industry issues in numerous international arbitrations and litigations in domestic courts.  Dr. Giacchino has vast experience in regulated industries such as the natural gas, electricity, oil, mining, water, transport and milk industries and also in many unregulated industries.  He is also an Adjunct Professor at the Washington College of Law (American University) where he teaches damages in international arbitration.  He is also the coauthor (with Dr. Jonathan Lesser) of Fundamentals of Energy Regulation, published in 2007 and 2013 (second edition) by Public Utilities Reports, Inc. (PUR) and Principles of Utilities Corporate Finance, also published by PUR in 2011.

Alexandre de Gramont is a partner in Dechert’s Washington, D.C. office.  He focuses his practice on investor-state arbitration and international commercial arbitration matters across a broad range of industries, arising from nearly every corner of the globe.  Mr. de Gramont’s practice involves arbitration before the ICSID, PCA, ICC, SCC, ICDR and AAA as well as ad hoc arbitration under UNCITRAL and other procedural rules.  He represents parties in disputes across multiple industry sectors including aerospace and transportation, entertainment, hospitality, infrastructure, mining , and oil and gas.  He has extensive experience with transactions and investments involving multiple jurisdictions, including in Africa, Asia, Europe, and Central, North and South America.  Mr. de Gramont has handled cases arising under numerous bilateral investment treaties and multi-lateral treaties (including the Energy charter Treaty, NAFTA, and CAFTA-DR), investment agreements, and commercial contracts.

Roula Harfouche is a Partner in the London office of Accuracy, Forensics, Litigation & Arbitration practice.  She specializes in contentious valuations and the assessment of quantum issues in international arbitration and litigation cases.  She has more than 17 years’ experience in the assessment of complex damages in high-value international arbitration and litigation cases in matters involving breach of contract, investment treaty claims, transaction-related disputes, and intellectual property infringement.  Ms. Harfouche has been appointed as expert, has testified, and has been actively involved in matters in LCIA, ICC, SCC and ICSID arbitration forums and under the UNCITRAL rules, before the UK High Court, the UK Family Division and Patents Court, as well as in mediation.  She is a Fellow of the Institute of Chartered Accountants in England and Wales and a member of the society of Share and Business Valuers.

Miriam Harwood is a Partner in Curtis, Mallet-Prevost, Colt & Mosle’s New York office.  She specializes in international arbitration, including commercial disputes and investment treaty claims, and has served as counsel for foreign states, governmental agencies and private entities in a broad array of cases.  She has handled arbitration under the auspices of the major international arbitral organizations, including the ICSID, the ICC and UNCITRAL.  Notable cases include representation of Venezuela against the multi-billion claims brought by oil companies ConocoPhillips and ExxonMobil, involving claims of US$30 billion and $16 billion, respectively.  Other recent arbitration includes disputes involving construction contracts and oil and gas projects.

Shreyas Jayasimha is a Principal in Aarna Law Advocates.   His primary practice areas included litigation, arbitration and regulatory investigations.  He is also engaged as counsel to argue matters before various courts and arbitral tribunals.  He is a member of the Executive Committee of Federation for International Arbitration Advocacy, Geneva and conducts training programs for advocacy and cross examination techniques.

Jean Kalicki is a full-time independent arbitrator based in New York and Washington, D.C. specializing in international, complex commercial and investor-State disputes.  Until April 1, 2016, she was a Partner at Arnold & Porter, serving as counsel in a wide range of high-states international disputes.  For more than 25 years she has conducted arbitrations involving six continents, across a wide range of industries and disputed issues, addressing issues of public international law and the laws of dozens of different countries.  Ms. Kalicki is a member of the board of directors of the AAA, LCIA, ICC Commission on Arbitratiorn *US National Committee, the Board of directors of SICAMA, Inc. (Icc North America), and the Governing Board of ICCA.  She is a Fellow of the Chartered Institute of Arbitrators and of the College of Commercial Arbitrators.  Ms. Kalicki teaches arbitration and advocacy as an adjunct professor at Georgetown University Law Center and American University Washington College of Law.

Mark Kantor is a qualified arbitrator and mediator in commercial and investment disputes.  He is a member of the AAA Commercial and International Panels, the AAA’s Large Complex Cases Roster, the AAA/ICDR’s Energy Arbitrators, the LCIA list of arbitrators, the CPR Panel of Distinguished Neutrals for Banking and finance, the CPR International Panel, and many other organizations.  Mr. Kantor was a Partner with Milbank, Tweed, Hadley & McCloy where his principal transactional focus was in the area of domestic and international investments and financing.  His  recent arbitration and mediation engagements include disputes in the energy (upstream, mid-stream, and downstream oil & gas and power), M&A, telecommunications, health care and pharma, semiconductors, political risk insurance, generic to-level domains, securities, water rights among many other areas.

M. Alexis Maniatis is the President and Chief Executive Officer of The Brattle Group and leads the firm’s International Arbitration practice.  He previously served as chairman of the firm, directed Brattle’s Washington and London offices, and led the litigation practice.  Mr. Maniatis has more than twenty years of experience providing consulting and expert witness testimony and advising clients on valuation and damages issues in expropriations, contract disputes, competition-related litigation, asset and merger transactions, and regulatory proceedings.  He has addressed issues including development of expected cash flows, discount rates, control premia, country risk adjustments, prejudgment interest, and interpretation of acquisition transactions and publicly traded company values.

Irmgard Marboe is Professor of International Law at the University of Vienna and a member of their Arbitration Commission.  Her research focuses on such topics as compensation and damages in international law, international investment law, and international arbitration.

Craig S. Miles is a partner in King & Spalding’s Houston office.  He practices in their International Arbitration Group.  His practice focuses on representing foreign investors in disputes with host governments, primarily before the World Bank’s International Centre for Settlement of Investment Disputes and private parties in commercial disputes before the ICC, the AAA, and other domestic and international arbitral institutions.  Mr. Miles has first – or second – chaired dozens of arbitral hearings involving disputes throughout North and South America, Europe, Asia, Africa and the Middle East, with particularly strong experience in bilateral investment treaty disputes in the oil & gas and infrastructure sectors and in Latin America. Among his recent cases are some of the largest BIT awards and settlements ever obtained by foreign investors, against the likes of the governments of Argentina, Bolivia, Ecuador, Egypt, Romania and Venzuela.

Timothy G. Nelson is a Partner in the New York office of Skadden, Arps, Slate, Meagher & Flom.  He represents clients in a variety of disputes involving cross-border and international law issues, including arbitration before international bodies such as the American Arbitration Association/International Centre for Dispute Resolution (ICDR), the International Chamber of Commerce (ICC), the International Centre for Settlement of Investment Disputes  (ICSID) and tribunals constituted under the Arbitration rules of the United National Commission of International Trade Law (UNCITRAL).

Michael Nolan is a Partner in the Washington, D.C. office of Milbank, Tweed, Hadley & McCloy and a member of the firm’s Litigation and Arbitration Group.  A partner since 1998, Mr. Nolan has represented clients in US federal and state courts and before arbitral tribunal in all manner of complex disputes, including general commercial, securities, antitrust, tax, and insolvency cases.  Mr. Nolan’s practice has a particular focus on international arbitration and transnational litigation.  He has served as counsel or arbitrator in cases under AAA, ICC, ICSID, UNCITRAL and other rules.  His arbitration experience has involved, electricity, gas, transportation, and mining concessions; joint-venture agreements, satellite and other insurance coverage; construction; and energy distribution.  He has represented both investors and states in arbitration pursuant to bilateral investment treaties and the Energy Charter Treaty.

Jimmy S. Pappas is the Managing Director of PricewaterhouseCoopers, Forensic Services in Boston.  He advises legal counsel, management, and boards of directors on accounting, financial, and internal control matters in the context of internal investigations, civil and criminal securities fraud litigation, business disputes, crisis management, and corporate governance controversies.  Mr. Pappas has served clients, including Fortune Global 500 companies, internationally.  He has consulted as an accounting/audit/damages expert on disputes adjudicated in federal courts, state courts and international venues.  Mr. Pappas has been engaged as a consulting expert by defendants in criminal securities fraud litigation initiated by the US Department of Justice, and has advised plaintiffs and defendants in commercial disputes involving damages and valuation issues.  In addition, he has conducted corporate internal investigations on issues relating to the integrity of financial statements, corruption, and misappropriation of assets.

Garrett W. Rush is a Managing Director in the Disputes and Investigations practice of Navigant.  He has provided consulting services related to international arbitration, strategic decision-making, and valuation matters.  Mr. Rush’s recent international arbitration experience is in oil & gas, mining, luxury goods, electric utilities and transportation.  His recent strategic consulting has involved identifying high-potential business segments and projects for mid-size public and private companies.

George D. Ruttinger is a Partner in Crowell & Moring’s Washington, D.C. office.  He practices in the firm’s Government Contracts Group and is co-chair of the International  Dispute Resolution Group.  He has represented domestic and foreign clients in international arbitration before tribunals of the ICC, Stockholm chamber of Commerce, Netherlands Arbitration Institute, Permanent Court of Arbitration, and the ICSID.  He has represented clients in a broad range of industries, including aerospace, technology, manufacturing, and pharmaceuticals.  Beyond his cored Government Contracts and International Disputes practices, Mr. Ruttinger is a versatile litigator and trial lawyer who has successfully represented clients in complex antitrust litigation and mass torts cases.

Geoffrey Senogles is a Vice President with Charles River Associates.  He heads CRA’s European team of forensic accountants based in the Geneva and London offices.  Mr. Senogles specializes in international arbitration.  His practice focuses on investigative accounting and the measurement of financial losses; specializing in international arbitration disputes (treaty and commercial), joint venture disputes (reviews and audits), loss of profits, sports, business valuations, royalty audits, financial investigations and compliance – including US Commodity Futures Trading commission.  He has worked on assignments across western and eastern Europe, the Middle East, Africa and North America; including three yeas on staff at the United Nations Compensation Commission, Switzerland.  Mr. Senogles has testified in arbitration at ICSID, LCIA, SCC, and the High Court, London; at the Iran-US Claims Tribunal and at TAS/CAS Court of Arbitration for Sport; and has also acted as expert in UNCITRAL, energy Charter Treaty and AAA arbitration.

Hi-Taek Shin is a Professor of Law at Seoul National University School of Law and the Director of the Center for International Economic and Business Law at Seoul National University.  Professor Shin was a partner at the leading Korean law firm of Kim & Chang where he specialized in mergers and acquisitions, foreign direct investment, and resolution of disputes arising from cross-border investment projects, for more than twenty-five years.  He has extensive experience in representing international investors doing business in Korea and advising Korean companies investing overseas.  Professor Shin has advised the Korean government on issues relating to the negotiations of many international agreements.

Mick Smith is a Partner and Co-founder of Calunius Capital.  He is responsible for origination and transaction execution at Calunius and is also Calunius’ Compliance Officer.  Mr. Smith qualified as a solicitor at Freshfields in 1996 and subsequently worked in finance in a variety of investment banking roles.  He has written extensively on all aspects of litigation funding, and international arbitration, arising from both commercial and investment treaty disputes.  Mr. Smith is regarded as a “go to” speaker on competition law claims, especially private damages follow on claims.

Abby Cohen Smutny is a Partner in White & Case’s Washington, D.C. office.  She co-heads White & Case’s International Arbitration Practice in the Americas and heads the firm’s public international law practice.  Ms. Cohen Smutny’s experience includes working with clients in a wide range of industries including banking, financial services, oil & gas, mining, electric power, real estate development, water supply, retail, pharmaceuticals, construction, tobacco, railroads, telecommunications and manufacturing.  She has significant experience managing claims arising out of project financing, privatizations, natural resource concessions, contracts with State and state-entities and political risk insurance.  Ms. Cohen Smutny represents clients in arbitration before all major arbitral forums and serves as counsel in cases arising under bilateral investment treaties, the Energy Charter Treaty, the NAFTA, the DR-CAFTA, and the ASEAN treaty.

Martin J. Valasek is a Partner and Head of International Arbitration in Norton Rose Fulbright’s Montreal office.  He is a leading practitioner in the area of international arbitration, with extensive experience in both investor-state and commercial contract disputes.  Mr. Valasek regularly acts as counsel, and also sits as an arbitrator.  His experience covers a wide range of legal systems and industries, including aerospace, banking, construction, mining, energy, environmental remediation, pharmaceuticals and manufacturing.  He has provided winning guidance to clients, in both transactions and disputes, under all of the leading rules, including the ICC, LCIA and UNCITRAL Rules, and other institutional and ad hoc regimes.  Mr. Valasek has acted as arbitrator, and as tribunal secretary, in several important arbitration cases, including the multibillion dollar Yukos-Energy Charter Treaty arbitration.

Earn 6.5 hours New York State Continuing Legal Education credit hours (transitional and non-transitional) in the Areas of Professional Practice.

Accommodations

Please visit:

https://www.reservations-page.com/C00519/H11149/be.ashx?pc=WH0FA

Rooms have been blocked for the nights of September 15 and 16 at:

Washington Plaza Hotel
10 Thomas Circle, N.W.
Washington, D.C. 20005

At a special conference rate of $239.00USD Single and $269.00USD Double per night.  Hotel fees and applicable taxes are additional.

Reservations must be received by August 16, 2016 to receive the preferred rate.  After August 16, 2016 rooms can be booked on a space and rate available basis.  All arrangements are between the registrant and the hotel.

Hotel Contact Information:
Washington Plaza Hotel, Tel: 202 842 1300 or 800 424 1140

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