Eighth Annual Damages in International Arbitration: Traditional vs Non-Traditional Approaches, Emerging Trends, Methods and Techniques

Tuesday 19 November 2019 – New York City, USA
Conference hosted at:
Baker McKenzie LLP
452 5th Ave, New York, NY 10018


Eighth Annual Damages in International Arbitration

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.  The objective of international arbitration is generally to obtain – or avoid – the payment of compensation. Yet despite being the “end game” for most arbitral actions, we often see damages treated almost as an afterthought. 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.

Registration

Note: Damages is our last conference of 2019; Early Bird pricing will remain in effect as a thank you for your continued support of our programs. See you in 2020!

Damages in International Arbitration - NYC
$595.00

*Damages in International Arbitration - NYC
$375.00

* ONLY available to full-time academics [with no law firm affiliation], government employees, and full-time in-house corporate counsel.
** Wire transfer information and student rate contact – jhernandez@jurispub.com

Continuing Legal Education: Earn 7 hours of NYS CLE credit (transitional and non-transitional) in: Ethics and Professionalism 1.5; Areas of Professional Practice 5.5.

Program

8:00 – 9:00
Registration and Continental Breakfast

Keynote Speech: Mark Kantor speaking during lunch

9:00 10:30
Panel 1: New Developments – The Use of Real World Option Models and Other Alternatives/Evolutions of “Traditional” DCF
This panel will look at emerging non-traditional valuation methods as alternatives to “traditional” DCF (Discounted Cash Flow), such as “real options”/”modern” DCF, Monte Carlo simulation, etc., with a particular focus on the groundbreaking US $7 billion award issued in July 2019 in Tethyan Copper Company Ltd v Pakistan, which became the first tribunal in an ISDS case to measure damages using the “modern” DCF method.

Moderator:
Craig Miles, King & Spalding, Houston
Panelists:
Tiago Duarte-Silva, Charles River Associates, Boston
Florin Dorobantu, Brattle Group, New York
Sharmistha Chakrabarti, Skadden Arps, New York
Natalie L. Reid, Debevoise & Plimpton, New York

10:30 –11:00 Networking Coffee/Tea

11:00 – 12:30
Panel 2: Dealing with Lost Chances and Other Uncertainties in Evaluating Lost Business Opportunities
Commercial and investment arbitration tribunals have long grappled with how to deal with uncertainties whether a business or business opportunity will be profitable.  This has lain at the root of many early decisions refusing to allow a DCF-based damages model to be used to value early-stage companies.  This also has led to debates over whether a claimant/plaintiff can be awarded damages for the loss of a chance — or, conversely, whether the chance of an adverse future contingency can be dealt with by simply applying a contingency factor. Some commentators remain critical of such approaches, contenting they are legally unsound; others are comfortable with using probabilities in the quantum process.

A separate but related issue (at the moment mainly confined to investment cases) is whether tribunals can properly discount damages based on the claimant’s contributory fault.

This panel will also explore whether there a split between English and New York law on damages for “loss of a chance” or the lost opportunity to operate a fledgling business.

Moderator:
Santiago Dellepiane, Berkeley Research Group, New York
Panelists:  
Elliot Friedman, Freshfields, New York
Mark Kantor, Independent Arbitrator
Chris Stomberg,  NERA Economic Consulting, Washington DC
Rachel Thorn, Cooley, New York

12:30 – 2:00 Networking Lunch with Keynote Speech – Mark Kantor

2:00 – 3:30
Panel 3: Contractual Caps on Damages, Including Limitations on Consequential or Indirect Damages.
This panel will discuss the issues that counsel, arbitrators and experts face when faced with a contract that purports to cap or limit the extent of damages, including through limitations on consequential or indirect damages.  What effect does this have on the ability of arbitrators to grant monetary relief?  What constraints does this put on damages models?  What arguments are available (or not available) to counsel seeking to overcome limits on “consequential” damages — and are the concepts of “direct,” “consequential” and “indirect” damages workable/meaningful?

Moderator:
Timothy Nelson, Skadden, New York
Panelists:
Greig Taylor, AlixPartners, New York
John Trenor, WilmerHale, Washington DC
Elizabeth Oger-Gross, White and Case, Paris
Brian King, Independent Arbitrator

3:30 – 4:00 Networking Coffee/Tea Break

4:00 – 5:30
Panel 4: Counsel’s Role in the Quantum Phases – Effective Advocacy, Cross-Examination Techniques, the “Hot Tub” and Relations with the Expert — Including related Ethical/Disqualification Issues

Moderator:
Grant Hanessian, BakerMcKenzie, New York
Panelists:
Daniela Bambaci – Berkeley Research Group
Ronnie Barnes – Cornerstone Research
Filip Boras – Baker McKenzie  
Kathleen Paisley – Ambos NBGO Lawfirm, Brussels
Aníbal Sabater – Chaffetz Lindsey, New York

5:30 – 5:45
Closing Remarks by the Conference Co-Chairs

5:45 – 6:45
Cocktail Reception

Co-Chairs

Grant Hanessian is a partner in Baker McKenzie’s New York office, has more than 30 years experience as counsel and arbitrator in disputes concerning investment, energy, construction, commodities, financial services, intellectual property and other matters. He served as global head of Baker McKenzie International Arbitration group from 2008-2015 and head of its North American International Arbitration group from 2003-2018. Mr. Hanessian currently serves as US member of the ICC International Court of Arbitration; chairman of the ICC-USA arbitration committee, US vice president of the LCIA North American users’ council, member of the AAA-ICDR international advisory committee and its advisory committee on Brazil and founding board member of the New York International Arbitration Center. He has edited four books and written more than 40 articles on international arbitration subjects and is annually recommended by Chambers Global and Chambers USA (“very knowledgeable and strategic in his offering of critical advice,” “an elite lawyer,” “very experienced, hugely knowledgeable and effective,” a “powerful advocate for clients”), The Legal 500 (“a great practitioner” with a “strong commercial profile”), PLC’s Which Lawyer?, Who’s Who Legal: Arbitration and Expert Guide to Leading Practitioners in International Arbitration (“best of the best” in international commercial arbitration). Mr. Hanessian is Adjunct Professor of Law at Fordham Law School, where he teaches the International Arbitration Practicum course.

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. J

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.

Confirmed Faculty


Daniela Bambaci – Berkeley Research Group
Ronnie Barnes – Cornerstone Research     
Filip Boras – Baker McKenzie, Austria
Sharmistha Chakrabarti – Skadden Arps, New York
Santiago Dellepiane – Berkeley Research Group, New York
Florin Dorobantu – Brattle Group, New York
Tiago Duarte-Silva – Charles River Associates, Boston
Elliot Friedman – Freshfields, New York     
Mark Kantor – Independent Arbitrator
Brian King – Independent Arbitrator    
Elizabeth Oger-Gross – White and Case, Paris
Kathleen Paisley – Ambos NBGO Lawfirm, Brussels
Natalie L. Reid – Debevoise & Plimpton, New York
Aníbal Sabater – Chaffetz Lindsey, New York
Chris Stomberg – NERA Economic Consulting, Washington DC
Greig Taylor – AlixPartners, New York
Rachel Thorn – Cooley, New York
John Trenor – WilmerHale, Washington DC

Baker McKenzie corporate discount available based on room availability; please contact Patricia Hugger for rates, availability, and reservations: Patricia.Hugger@BakerMcKenzie.com

Bryant Park Hotel
40 W. 40th Street
T +1-212-869-0100
Superior: $315 -$470 (seasonal rates)

The Andaz (Hyatt)
485 5th Ave.
T +1-212-601-1234
$370 – $565 (seasonal rates)

The Park Terrace
18 W. 40th St.
T +1-212-781-6400
Classic: $225-425 (seasonal rates)

Westin NY Grand Central
212 E. 42nd Ave.
T +1-212-490-8900
10% discount off best available rate

  • The ABA also offers member discounts at several hotels in NYC