What does it take to be an effective legal expert witness in international arbitration?

Most international arbitration proceedings require expert evidence from accountants, economists, scientists, but also from legal experts. That is particularly true when the matter at hand raises complex issues in highly specialised areas of the law (art law, derivatives law, etc.) or questions of foreign law (with globalisation, contractual disputes may for instance raise issues of Brazilian or Chinese law, i.e. legal regimes whose intricacies may not necessarily be well known from the arbitrators and the parties). When arbitral proceedings raise such issues, the parties will generally retain law professors, retired judges or other prominent lawyers to assist the tribunal.

As I have been regularly asked over the years to testify as a legal expert in the areas of competition and intellectual property law, i.e. the fields of law I teach and practice, I have often asked myself and the law firms which retained me what it takes to be an effective expert witness over issues of law. While every case is different and arbitration specialists may have different views as to what an effective expert witness is, I have come to the view that the following features are important.

First, the expert witness obviously needs to have relevant knowledge of the issues that will be presented to her. Moreover, the positions that she may have taken in the past (for instance, in law review articles, in judgments, etc.) should generally be consistent with the positions that she intends to take in her expert witness report. While one’s opinions over legal matters may vary over time and every case is different, it would not be credible for a legal expert to take positions that are diametrically opposed to those one held in the past. It is better to reject an expert witness assignment at the outset that having subsequently to conceal tensions between positions helpful to the client and positions adopted in the past. While an expert must be independent, she needs to be generally aligned with the positions held by the party that has retained her. Otherwise, the expert will either not to be true to herself or to provide a disservice to the client.

Second, while legal expert witnesses are deemed to deal with issues of law rather than issues of fact, a legal expert cannot abstract away from the facts (even if she, as a legal expert, should obviously not opine on facts). For instance, a relevant issue in most competition cases relates to market definition, which is an intensely factual matter. It would be wrong for an expert witness to take at face value the market definition suggested by the parties which retained her without taking the trouble of checking, by asking pertinent questions, whether the market in question is correctly defined from a competition law standpoint. Otherwise, she runs the risk that the entirety of her expert opinion may be vitiated because it is built on false premises. Moreover, there may be circumstances where certain facts that are presented by the parties as a basis for a claim of competition law infringement may appear inconsistent with the basic understandings of economic thinking. How is it, for instance, possible that the party in question claims that it has no market power while it has been able to increase its prices and profit margins over the years? This expert thus needs to verify with the party which has retained her whether the facts as presented to her are consistent. In a discipline like competition law, where facts are extremely important, one cannot be a serious expert witness by focusing only on an abstract legal question, except if it is possible to isolate this question from the facts of the case because it is of a theoretical nature.

Third, while a legal expert witness should be independent and not act like one of the lawyers of the party that selected her, she needs to be ready to defend the position of that party while remaining true to her principles and the law. In other words, when an expert is offered an expert assignment by one of the parties to an arbitration, she needs to enquire as to the position that the party intends her to take in her expert witness statement and make sure she is comfortable defending it. While the duty of an expert is to assist the arbitral tribunal, it would be foolish to think that an expert can be remunerated by one of the parties to suddenly take positions that are hostile to that party (considering, of course, that an expert cannot lie in her expert witness report or in her cross-examination). If an expert does not feel comfortable with the position pursued by the party wishing to retain her, she should simply decline the offer. Proceeding otherwise is dishonest and may not end up well.

Fourth, in most cases, the legal expert will not be the only expert involved. For instance, in competition or intellectual property cases, economic, technical and industry experts are also regularly invited to testify. When that is the case, it is important for the legal expert to coordinate her work, usually through the law firm acting for the party that has retained her, with the other experts in order to ensure the consistency of the positions taken. For instance, in competition cases, it does not make sense for the legal and the economic expert to operate separately and hope that their expert reports will eventually converge on issues such as market definition and dominance. When such issues are at stake, the economic report should feed the legal report. This means that these experts will have to show flexibility needed to work with others, while remaining true to their discipline and principles.

Fifth, experts need to make sure that the propositions contained in their expert report will resist cross-examination as it is a brutal process for which many eminent lawyers, such as law professors or retired judges, may not be necessarily well prepared. Once again, this means that an expert must be comfortable with the positions held by the party that retains her. While the writing of an expert report may allow the expert to conceal some possible discomfort with the positions of the party that has retained her, such discomfort will be exposed in cross-examination. Moreover, however eminent the expert is, she would be ready to go through the humbling experience of cross-examination.

Finally, and perhaps most importantly, legal experts need to take a pedagogical approach in their expert report and cross-examination as the arbitrators, however experienced they are, will often have little knowledge of the intricacies of the areas of law on which the expert will opine. Obscure expert reports full of jargon and technicalities will often be of little assistance to the arbitral tribunal. Thus, eminent lawyers retained as experts must consider that their audience will be composed of very skilled lawyers (the arbitrators), but who generally are laypeople when it comes to the area of law they have been asked to opine on.

In sum, legal experts accepting to testify on behalf of a party to an arbitral proceeding must realise that this is a serious endeavour and must do some due diligence from the outset on what is expected from her and whether the party or its lawyers’ expectations are in line with her own views and principles, and that she can meet them without moving (too far) away from her comfort zone.

****

 

 

Case report in Micula et al. v. Romania, [2017] EWHC 31 (Comm) – Judgment, 20 January 2017

The case report in this very interesting judgment dealing with arbitration and State aid issues can be found here.

Summary:

The High Court of Justice declined to set aside an order registering two Swedish investors’ (the claimants) ICSID arbitral award against Romania. However, the court did stay proceedings regarding the enforcement of the award until the resolution of claimants’ proceeding before the European Court to annul the European Commission’s Final Decision 2015/1470. Final Decision 2015/1470 declared that the award constituted new state aid under Article 107(1) of the TFEU and prohibited Romania from making any payments to the claimants. The Final Decision also demanded that Romania recover any sums it had already paid under the award to the claimants and declared that the claimants be jointly liable to repay any sums received from Romania. In granting a stay of enforcement of the award, the Court noted that enforcing the award would result in a conflict with a decision of the European Commission prohibiting Romania from paying the award, and a national court would be obligated to stay proceedings under these circumstances. Further, registering the award under the Arbitration (International Investment Disputes) Act 1966 did not create a conflict between the duties of the United Kingdom under the ICSID Convention because an ICSID award is equated to a final domestic judgment for enforcement purposes. The Court found the claimants’ request for an order requiring Romania to provide security persuasive because the proceedings related to an ICSID award which predated the decisions of the European Commission; the award was treated as a final judgment of the English court at the time of the award; and the award has remained unpaid for several years. However, the Court did not ultimately order Romania to pay security in this decision.

EU Competition Law and Arbitration Conference in Stockholm, 28 April 2017

The details about this very interesting event co-organised by the Arbitration Institute of the Stockholm Chamber of Commerce and the Spanish Arbitration Club (CEA) can be found here.

Welcome speeches

Annette Magnusson, Secretary General of the Arbitration Institute of the Stockholm Chamber of Commerce

José Antonio Caínzos Fernández, Co-President of the Club Español del Arbitraje

Keynote Speech

George A. Bermann, Director of the Center for International Commercial & Investment Arbitration (CICIA), Columbia Law School, New York

Panel 1 – Investment Arbitration and EU Law

Moderator: Cristina Martinetti, ELEXI, Turin

Crenguta Leaua, Leaua & Asociatii, Bucharest Intra-EU Bits, the EU Principle of Non-Discrimination and the EU State Aids Regime: A Difficult Coexistence

Ernesto Bonafé, Secretariat of the Energy Charter Treaty, Brussels The Energy Charter Treaty and the Lisbon Treaty: Two European Creatures on a Collision Course?

Epaminontas E. Triantafilou, Quinn Emanuel Urquhart & Sullivan, LLP, London The Role and Powers of Amici Curiae in Investment Arbitration

Annette Magnusson, Secretary General, SCC, Stockholm The Future of Investment Arbitration: Proposals, Perspectives, Concerns.

Panel 2 – Competition Law Based Claims in Commercial Arbitration

Moderator: Michelangelo Cicogna, De Berti Jacchia Franchini Forlani, Milan

Gordon Blanke, DFW Law, Dubai Is the Arbitrability of Competition Law Claims a Truly Settled Matter?

Pascal Hollander, Hanotiau & van den Berg, Brussels The Impact of the CDC Hydrogen Peroxide Judgment on Present and Future Arbitration Agreements

Damien Geradin, EDGE Legal, Brussels Arbitrators’ Power and Duty to Apply Competition Law Provisions Ex Officio

Luca Radicati Di Brozolo, ArbLit, Milan The Standard of Review of International Arbitral Awards on the Basis of Their Incompatibility with Competition Law Rules

Jesper Tiberg, Lindahl law firm, Stockholm Arbitrators in collision with competition law? The Swedish Supreme Court judgment in the Systembolaget case – a saga in four chapters.

Conclusive Remarks

Filip De Ly, Erasmus University School of Law, Utrecht

Economic expertise in arbitral proceedings

One of the most significant evolution of competition law in past decades has been the growing role of economists. There is hardly an antitrust authority investigation now that does not involve economic experts. These experts will typically opine on issues, such as market definition, dominance, the pro- or anti-competitive effects of an agreement or unilateral conduct, etc.

In my experience, the presence of economists in arbitral proceedings involving competition law issues was relatively rare in the past. Ten or fifteen years ago, these issues were dealt with by legal experts, typically competition law professors. Their analysis was often formalistic in nature and I found it frustrating. Economics did not play a major role. Black letter law prevailed.

Things are different now. In the last four or five cases in which I have been involved as a competition law expert, the parties also retained economists, often at my suggestion. This is a positive development. There is no reason why the type of effects-based analysis that is pursued by competition authorities should be ignored from arbitral proceedings. And arbitral proceedings are an ideal forum to hear economic evidence, generally more so that competition litigation proceedings before national courts.

The role of economists in arbitral proceedings involving competition law issues is not to draft briefs full of equations (unless placed in annexes), but to assist the arbitrators (whose competition law expertise is limited) by clarifying the economic concepts that are at play in the matter in question, as well as the economic theories and tools that can be used to assess the compatibility of the agreement/conduct in question with competition law.

My experience working with economists in arbitral proceedings, but also in national litigation or agency investigations, has always been very positive. Key, however, is to select the right economist expert (someone who can talk to lawyers) and defining the scope of his or her mission clearly.

 

III Seminar on International Developments in Competition Litigation

Cuatrecasas and RBB Economics, in collaboration with the CNMC and Universidad Carlos III de Madrid, are organising the Third Seminar on International Developments in Private Competition Litigation, which will take place on 27 April 2017 in the Conference Hall of the CNMC.

Speakers include:

– Prof. Richard Whish, Emeritus Professor of Law, King’s College London
– Ignacio Sancho, Magistrate of the Spanish Tribunal Supremo, Civil Division
– Sir Peter Roth, President of the Competition Appeal Tribunal, London
– Filip Kubik, Private Enforcement Unit, DG Competition, European Commission
– Tilman Makatsch, Head of Competition Litigation, Deutsche Bahn

DATE

Thursday, 27 April 2017
15.30 – 20.00

ADDRESS:

Salón de Actos
CNMC – Comisión Nacional de los Mercados y la Competencia
Calle de Alcalá, 42
28014 Madrid Map

The state of research on arbitration and EU law : Quo vadis European arbitration?

Very interesting literature review on arbitration and EU — including arbitration and EU competition law — by Barbara Alicja WARWAS, which can be found here.

Abstract:

The goal of this article is to provide a systematic literature review of studies on arbitration in recent decades. The major focus is on emerging developments in arbitration and EU law. The review will thus map the research on these developments and summarize its major findings to provide a better understanding of new trends in the scholarly literature on arbitration and EU law, and to identify research gaps to be addressed in the future. Just as almost 20 years ago Pieter Sanders addressed the then emerging problems of arbitration practice and posed a question: “Quo Vadis Arbitration?” this paper asks the question “Quo Vadis European Arbitration”? Hence, it aims at depicting the current and future direction of EU law and arbitration by proposing a common platform for discussion on these two distinct yet increasingly overlapping fields.

Marc Deschenaux of Deschenaux, Hornblower & Partners, LLP has kindly asked me to bring to your attention this paper entitled The Role of the Arbitrator in Applying EU Competition Law under the Modernisation Process authored by his colleague Debora Pinto.

Introduction:

International Commercial Arbitration is an increasingly important method of adjudicating cross-border disputes between business actors and ‘is likely to become an increasingly important area for competition policy and enforcement.’ Even though arbitration as an appropriate forum is not under analysis, its characteristics may be helpful in understanding some of the shortcomings experienced in arbitral proceedings when applying European Union (hereinafter “EU”) Competition Law. The confidentiality of the arbitral proceedings, even if often seen as an advantage in the parties’ perspective, may result in an impediment to the collaboration of the European Commission (hereinafter “Commission”) or the National Competition Authorities (hereinafter “NCAs”), and in a broader context to the public enforcement of EU Competition Law. The wide scope of recognition and enforceability of the arbitral awards, in view of the success of the New York Convention , is another important consideration which is, nevertheless, closely related to the arbitrators’ expertise. Arguably, ‘arbitration is only as good as its arbitrators’ which means that the expertise of the arbitrator will be determinant when dealing with EU Competition Law issues, in light of the inherent complex factual and economic considerations required to reach a decision, not to mention a general duty to render an enforceable award. However, his expertise may not be sufficient to render an enforceable award if there is lack of support by the Commission or the Court of Justice of the EU (hereinafter “CJEU”). It is precisely the fact that arbitration is a consent-based jurisdiction that tends to preclude arbitrators from submitting preliminary rulings to the CJEU. Also, the fact that arbitration is expeditious, especially when compared to litigation, makes it a privileged forum for business actors. Nevertheless, the enunciated procedural shortcomings may ultimately lead to its inefficiency, especially if subject to review before national courts.