Seventh Annual Damages in International Arbitration Conference – Looking Back, Looking Forward: Evolution and Trends

Thursday 15 November 2018.
Bryan Cave Leighton Paisner (BCLP) LLP, Adelaide House London Bridge
London, England

 

Seventh Annual Damages in International Arbitration Conference

Damages in International Arbitration are a vast and important topic requiring thoughtful and detailed consideration by the tribunal, the parties and valuation experts such as accountants and economists.  Damages are a key concern in proceedings because achieving them or avoiding them are the countervailing goals of the parties. Damages may take many forms: they are not only compensatory, but they may also be subject to counterclaims and set-offs, reduced by failures to mitigate and enlarged by the application of interest and costs. They may be arrived by tribunals in a variety of ways, some more disciplined than others. Issues of causation loom large even before the application of methods of quantification.

This conference will provide insights from leading authorities and experts on what should be foremost in the minds of all – advocates, experts, arbitrators and the parties – that are involved in the international arbitration process:

How Best to Determine What Prevailing on the Merits in International Arbitration is Worth.

Program

8:15 – 9:15
Registration and Continental Breakfast

9:30 – 11:00
Panel 1:  Looking Back – 90 Years Since the Publication of Chorzow Factory

Moderator:  James Searby – F T I Consulting
Keynote Speaker:  The Rt Hon The Lord Hoffmann
Speakers:  Rémy Gerbay – MoloLamken, Carlos Lapuerta – Brattle, Timothy G. Nelson – Skaddan, Audley Sheppard – Clifford Chance, Vikki Wall – Haberman Ilett

  • The Principles of Damages Assessment that have Emerged from Chorzów. A Financially Literate Tribunal in 2018 would not pose the same questions of its Experts as those asked by the PCIJ. If that is so, what would a Modern Chorzów Tribunal ask?
  • More Generally, is the Award of a “Lookback Option” to Claimants (i.e. the right to claim an amount in excess of the foreseeable loss at the date of breach, if such an amount is available) Appropriate, when Financial Markets do not offer such options? Or, in Legal Terms, does the Principle of “No Unjust Enrichment” override the principle of “Damages must be Foreseeable” and, if so, why?
  • The PCIJ’s Instructions to Experts: What did they think they were doing and what would a modern PCIJ have instructed instead?
  • What’s the Basis, in Law, for Claimants to have a Choice of Valuation Dates? It has been said that the PCIJ’s interest in valuation at different dates was driven by changes made to the nitrate plant between the date of expropriation and the hearings 4, 5 or 6 years later rather than by concerns about unjust enrichment? This may not be how the choice is presented today in, for example, ADC v Hungary or Yukos v Russia (annulled)?
  • What is the Meaning of “Full Reparation”? Does its meaning differ if the Expropriation is Lawful, as compared to situations when it is found to be Unlawful?

11:00 – 11:30
Coffee/Tea Break

11:30 – 13:00
Panel 2:  Looking Forward – Empirical Trends and Addressing Needs of Counsel and Tribunals

Moderator:  Loukas Mistelis – Queen Mary
Speakers:  George Burn – BCLP, Matt Fritzsche – PwC, Colin Johnson – Charles River, Sabine Konrad – McDermott Will & Emery

  • Discussion of Recent Trends in Damages in Investment Awards as Collated by PwC between 2015-2018.
  • Expert and Counsel Perspectives on the Damages Process.
  • Identification of Innovations and Best Practices

13:00 – 14:00
Networking Lunch

14:00 – 15:30
Panel 3:  Looking Back – The Allocation of Costs in International Investment Arbitration

Moderator:  Irmgard Marboe – Vienna University
Speakers:  Hilary Heilbron – Brick Court Chambers, August Reinisch – Vienna University, Adriana San Román – Wöss & Partners, Mick Smith – Calunius Capital.

  • The Principle of ‘the Costs Follow the Event’ will be contrasted with the principle that every party should bear its own costs.
  • The Relevance of the Behaviour of the Parties and other Policy Considerations, such as Small Companies, Small Countries, General Prevention Purposes, which may Influence Tribunal Decisions.
  • The Involvement of Third-Party Funders and their Influence on the Allocation of Costs will be analysed from both a theoretical and practical perspective.
  • The Panel will address these issues from both the perspective of Civil Law and Common Law traditions and in light of recent Arbitration Law and Practice.

15:30 – 16:00
Coffee/Tea Break

16:00 – 17:30
Panel 4:  Looking Back and Forward – Ask the Experts; Q&A Session with Leading Experts

Moderator:  Rory Walck – Global Financial Analytics LLC ®
Speakers:  Gladys Bagasin – Hanotiau & van den Berg, Mark Beeley – Orrick, John Gotanda – Hawaii Pacific University, Roula Harfouche – Accuracy, Sophie J. Lamb – Latham & Watkins, Craig Miles – King & Spalding

  • The Q&A session questions will come from the from the Audience, Faculty and the Panel Chairs.
  • Questions will Follow up on Themes and Issues Raised During the Conference, as well as other Topics of Interest Critical to Best Understanding the Damages Process and what will be the Ultimate Cost.

17:30 – 17:45
Closing Remarks by the Conference Co-Chairs

17:45 – 18:45
Cocktail Reception

 

Registration

Online Registration:

Damages in International Arbitration
$750.00

Damages in International Arbitration*
$475.00

*ONLY available to Full-Time Academics with no law firm affiliation, Government Employees, and Full-Time In-House Corporate Counsel.

PDF Registration Form

Accommodations

We have a corporate rate at the London Bridge Hotel, link below.
Quote- Bryan Cave Leighton Paisner to avail the rate.

https://www.londonbridgehotel.com/

 

Co-Chairs

Irmgard Marboe is professor of International Law at the University of Vienna. She is the author of Calculation of Compensation and Damages in International Investment Law published by Oxford University Press (1st edn 2009, 2nd edn 2017). Since 2016, she is Co-Editor-in-Chief of The Journal of Damages in International Arbitration. She is the Vice-Chair of the Vienna University’s Arbitration Commission and acts as consultant in investor-State arbitrations as well as an advisor to the Austrian Ministry of Transport, Innovation and Technology.

Loukas Mistelis is the Clive M. Schmitthoff Professor of Transnational Commercial Law and Arbitration at Queen Mary University of London.  He is a member of the Centre for Commercial Law Studies where he is Director of the School of International Arbitration.  Professor Mistelis is an acknowledged authority on international dispute resolution.  His substantial arbitration experience covers ICC, ICSID, LCIA, UNCITRAL, SCC, Swiss Chambers and Moscow cases.  Parties in these cases were from countries that include, Bangladesh, Egypt Switzerland, German, India, Russia, Canada, Nigeria, Ireland, Ukraine, Korea, UAE and the United States.  Subject matters included foreign direct investment, sales, contracts, distribution agreements, counter-trade, mining, share purchase agreements, media contracts, administration of natural resources, oil and gas transactions.

James Searby is a Senior Managing Director in FTI Consulting’s economic and financial consulting practice, specializing 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 businesses, contracts, damages, intellectual property or financial assets.  He has a broad range of experience in the assessment of complex damages in high-value international arbitration and litigation cases in matters involving, inter alia, alleged expropriation, breach of contract, patent infringement and shareholder disputes.  The range of Mr. Searby’s industry experience encompasses telecommunications, oil and gas, chemicals, tobacco, infrastructure, healthcare, media, life insurance, retailing and banking.  He has worked in EMEA, North America, and the Asia Pacific region for governments, companies, and individuals, whether as claimants or respondents on matters ranging in value from less than US$1million to more than US$2 billion.  In  April 2015, Mr. Searby moved to Washington, D.C. to lead the build-up of the International Arbitration practice in that region.

Richard E (Rory) Walck is a partner and co-founder of Global Financial Analytics LLC, a firm recognized in GAR’s 2018 Power Index of expert firms. He has served as an expert since 1977, consulting on hundreds of matters in litigation and arbitration, as well as regulatory matters, workout, restructuring and liquidation of assets. His clients have ranged from multinational corporations and governments involved in investment treaty disputes to companies with contract or other commercial claims.  Mr. Walck has experience in arbitration under multiple institutional rules, including ICSID, ICC, ICDR, UNCITRAL, AAA and ad hoc matters.  His experience includes projects in oil & gas, electricity, chemicals, infrastructure industries, shipbuilding, financial services, manufacturing and other fields.  He holds multiple certifications in accounting, finance and valuation and was the founding Editor-in-Chief (with John Gotanda) of The Journal of Damages in International Arbitration.

Faculty

Gladys Bagasin assists Prof. Bernard Hanotiau, serving as Tribunal Secretary in ad hoc and institutional arbitrations covering a wide range of disputes relating to gas pricing, energy, project management, construction, banking, etc. She previously worked in a top-tier law firm in Manila for four years before completing her LL.M. in Georgetown University.

Mark Beeley is a partner at Orrick who focuses on disputes arising out of the energy sector, as well as on construction, insurance, shareholder and corruption/fraud matters.  He sits as arbitrator as well as acting as advocate in the arbitration and court hearings.  He writings include the proper approach to the award of interest.

George Burn is Partner, Head of International Arbitration at Bryan Cave Leighton Paisner.  He is a seasoned advocate appearing in international arbitration proceedings, representing companies and individuals.  Mr. Burn is admitted in England as a Solicitor- Advocate.  His practice covers both Investor-State arbitration and commercial arbitration, and has involved the full range of arbitral seats and arbitral rules (ICSID, UNCITRAL ,ICC, LCIA, SIAC, SCC, PCA, CRCICA, CIArb, etc).  The cases on which Mr. Burn works involve issues of public international law, private international law, English law and the law of numerous other jurisdictions.  His cases often involve complex or novel issues of jurisdiction, and he has worked on various cases in which the relationship between Investor-State law and criminal law (national and international) has been at issue.  He has particular strength in arbitrations coming out of projects in emerging markets, with clients from, or working in, regions such as the Middle East, the CIS, Eastern Europe, Africa, South Asia, East Asia, and the Caribbean.  As well as acting as Counsel, he regularly sits as an arbitrator, and has been appointed as Sole Arbitrator, Chair of the Tribunal and Co-Arbitrator.  He sits in commercial and Investor-State cases.

Matt Fritzsche specialises in advising clients on the financial, accounting and economic aspects of disputes. He has particular experience in the quantification of damages and loss for the purpose of international arbitration and litigation. His work has covered disputes in various industries including construction, energy, telecoms, real estate and others He spent four years with PwC in Dubai and retains a focus on disputes arising in the Middle East, Africa, and other emerging markets.

Rémy Gerbay is an international arbitration lawyer (trained in the UK, United States, France and Switzerland) practicing at MoloLamken LLP in Washington, DC. Mr. Gerbay also holds a permanent academic post at the University of London (Queen Mary), where he teaches international arbitration. His practice focuses on cross-border commercial disputes, international investment disputes, as well as arbitration-related litigation. He represents clients across various sectors, including energy, infrastructure, transportation, banking, and telecommunications, in various regions including Europe, North America, Sub-Saharan Africa and the CIS. He is bilingual (French; English), and is civil-law and common-law trained. He has been appointed as arbitrator (Chair, co-arbitrator, sole arbitrator and emergency arbitrator) in over 15 international cases.

John Gotanda is the President of Hawaii Pacific University. Prior to joining Hawaii Pacific University in 2016, he was the Arthur J. Kania Dean and Professor of Law at Villanova University School of Law.  He has published widely on the subject of damages in international law, and has been cited by courts, tribunals and commentators, including by the U.S. Supreme Court.  He has spoken widely on the subjects of damages, international arbitration, and international sales law, including at the Hague Academy of International Law. He also serves as an expert on damages and an arbitrator in international investment disputes. He is a member of the Advisory Council of the United Nations Conventions on Contracts for the International Sale of Goods.

Roula Harfouche is a Partner in the London office of Accuracy, and a Fellow of the Institute of Chartered Accountants in England & Wales. She has specialized since 2000 in contentious valuations and the assessment of complex damages in high-value international arbitration and litigation cases involving breach of contract, investment treaty claims, transaction-related disputes, and intellectual property infringement.

Hilary Heilbron acts as both counsel and arbitrator in substantial international arbitrations. With approximately 100 appointments as an international arbitrator she has wide experience of most of the arbitral instructions globally and often acts as Chair of the tribunal. She is currently a member of the ICCA-ASIL Task Force on Damages; the LCIA Court; the ICC UK Arbitration and ADR Committee; and the International Advisory Committee of the ICDR. She is also a Deputy High Court Judge and the author of “A Practical Guide to International Arbitration in London”.

Lord Hoffmann joined Queen Mary in June 2009 as Honorary Professor of Intellectual Property Law, following his retirement as a Lord of Appeal in Ordinary. He was a Lord of Appeal in Ordinary from 1995 to 2009. Since then he has been appointed as an arbitrator in more than 58 international commercial and investment treaty disputes under the ICC, LCIA, ICSID, UNCITRAL, SIAC and KLRCA Arbitration Rules. He is ranked by Chambers 2015 among the “most in demand” international arbitrators global-wide with a “stellar reputation”.

Colin Johnson is a Vice President in CRA’s Energy Practice.  He has more than 20 years of experience in the energy and infrastructure sector with a particular focus in the power, oil and gas industries.  Mr. Johnson has international experience in analyzing, negotiating, and managing major energy projects and has worked in Europe, North America, Latin America, Africa, the Middle East, and Asia.  He has acted on behalf of national governments, large companies, and entrepreneurs in international arbitrations and litigation as an expert witness for a variety of cases ranging up to US$50bn+ in claim value.

Sabine Konrad is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Frankfurt office. She focuses her practice on international dispute resolution, with an emphasis on commercial international arbitration and public international law. Dr. Konrad has advised investors and governments in matters of investment protection. She also has experience representing clients in a broad range of industries, including energy and infrastructure. Dr. Konrad also acts as arbitrator in investment treaty arbitration and international commercial arbitration cases. In 2007 and 2013, Dr. Konrad was designated by the Government of the Federal Republic of Germany to the Panel of Arbitrators of the World Bank’s International Centre for Settlement of Investment Disputes (ICSID). She is a member of the roster of arbitrators of the International Development Law Organisations (IDLO), the list of practitioners of the Vienna International Arbitral Centre (VIAC) and the panel of the Asian International Arbitration Centre (formerly KLRCA). Dr. Konrad also founded the Frankfurt International Arbitration Moot Court, the leading moot court internally in the investment treaty field. In 2005, she helped set up the Frankfurt International Arbitration Center, a cooperation facility of ICSID for investment treaty arbitrations in Germany.

Sophie J. Lamb QC is a litigation partner in the London office of Latham & Watkins and Global Co-Chair of the firm’s International Arbitration Practice.  Ms. Lamb is widely acknowledged as one of the leading arbitration practitioners of her generation and was appointed Queen’s Counsel in February 2018. She is a trusted advisor to boards of public companies, to investors and to sovereign nations, routinely engaged in the most complex, high value and/or reputationally significant disputes of the moment. Her cases have featured in The Lawyer’s top 20 cases of the year and she is listed as one of the UK’s most influential and inspirational lawyers in their Hot 100 list for her successes “in billion dollar, high profile, politically sensitive and often market-shaping arbitration cases and related court trials.” Commended for her exceptional client service and outstanding advocacy, Ms. Lamb regularly appears as advocate in all arbitral fora, before international tribunals and in the English courts. She has acted as an adviser and/or advocate in more than 100 international arbitrations across a range of industry sectors including automotive, banking and financial services, energy and natural resources, insurance, pharmaceuticals, private equity, and telecommunications.‎ She is also widely recognized for her experience in international investment and inter-state disputes.

Carlos Lapuerta is an expert in economic analysis and financial valuation, which he frequently applies to estimate damages in international arbitration proceedings. He has served as an expert witness in international arbitration proceedings, including many disputes between investors and sovereign states over the alleged breach of bilateral investment treaties. He offers particular experience in the analysis of investments and contracts in the energy sector, and has provided testimony in several arbitration proceedings concerning the prices in long-term energy contracts. Within the energy sector, his work has covered natural gas, coal, electricity and oil.

Craig Miles is a Partner in King & Spalding’s International Arbitration Group in their Houston office.  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 (ICSID) and private parties in commercial disputes before the International Chamber of Commerce (ICC), the American Arbitration Association (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 (BIT) disputes in the oil & gas, mining and infrastructure sectors in Latin America.  Mr. Miles is also regularly called upon to handle the quantum aspects of clients’ most significant disputes.  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 Venezuela.

Timothy Nelson is a Partner in Skadden, Arps, Slate, Meagher & Flom LLP’s New York office.  He represents clients in a variety of disputes involving cross-border and international law issues, including arbitrations before international bodies such as the American Arbitration Association/International Centre for Dispute Resolution (ICDR), the International Chamber of Commerce (ICC), the International Center for Settlement of Investment Disputes (ICSID) and tribunals constituted under the Arbitration Rules of the United Nations Commission of International Trade Law (UNCITRAL).  Mr. Nelson regularly advises sovereign and corporate clients on public international law issues including under multilateral treaties such as the Energy Charter Treaty, bilateral investment treaties (BITS); and other international trade/investment agreements.  Recently, he successfully defended Atlantic LNG Co. of Trinidad and Tobago against a $250 million claim by an affiliate of Gas Natural Fenosa in a UNCITRAL arbitration based in New York, involving a dispute concerning a long-term LNG supply contract, with favorable merits and fee awards in October 2016 and March 2017.

August Reinisch is professor of International and European Law at the University of Vienna. He was Dean for International Relations at the University’s Law School and is currently a Member of the Senate of the University of Vienna. He is Member of the PCIA and a Member of the Panels of Conciliators and of Arbitrators of ICSID, amongst others. Since 2017 he serves as a Member of the International Law Commission of the United Nations for the quinquennium 2017-2021. He acts as an arbitrator in various investment arbitrations.

Adriana San Román‘s work in corporate banking, financial engineering and project finance, has earned her extensive experience as an attorney and financial analyst. She is an internationally recognized damages expert, in particular for large infrastructure, construction and technology cases. She frequently acts as legal and quantification expert in international arbitrations. She is co-author of the book Damages in International Arbitration Under Complex Long-Term Contracts (Oxford University Press 2014) and member of the ICCA-ASIL Task Force of Damages in International Arbitration.

Audley Sheppard is a Partner and Co-Head of the International Arbitration Group at Clifford Chance LLP, based in London. He specializes in the resolution of major disputes arising out of infrastructure and energy projects, and international trade and investment. He also sits as an arbitrator (over 30 appointments). He is also Chairman of the LCIA Board and a Visiting Professor, School of International Arbitration, Queen Mary, London. He is a former: Vice-President of the LCIA Court (2011-2016); NZ Member of the ICC Court (2008-2012); Co-Chair of the IBA Arbitration Committee (2006-08); and Rapporteur of the ILA Arbitration Committee (1996-2006). Audley graduated with LLB (Hons) and B.Commerce (Victoria Univ. of Wellington, NZ) and LLM (Cambridge, England). He was appointed Queen’s Counsel in 2015.

Mick Smith was a co-founder of Calunius Capital with Mark Wells in 2006. Mick qualified as a solicitor at Freshfields in 1996. Subsequently he worked in finance in a variety of investment banking roles. He studied Mathematics and then Law at Cambridge University. Mick is much sought after as a conference speaker, not only on all aspects of litigation funding, but also international arbitration, arising from both commercial and investment treaty disputes. Mick has also written extensively on these subjects.

Vikki Wall is a partner at Haberman Ilett LLP with over 20 years’ experience as a forensic accountant focusing on work as an expert witness.  She has been the testifying expert in cases before the UK Courts and international arbitration tribunals on a variety of accounting and financial issues.  She specialises in evaluating quantum in commercial and contractual disputes (including loss of profits and misrepresentation claims), investment treaty disputes, transaction-related disputes, valuation disputes and in professional negligence claims.