Why commence an arbitration? How to navigate the economic considerations of your client
Before deciding whether to proceed with an arbitration, companies typically undertake a cost-benefit and risk analysis. This analysis covers the economics of the entire case, including – but not limited to – an estimate of the recoverable damages, compared to the potential costs of the proceedings. External lawyers can (and should) be of great support on such analysis, to ensure that the preliminary damages and the very choice to start the arbitration are not wildly off the mark and client expectations are properly managed.
What drives damages awards in international arbitration and what impact do damages experts have?
Different types of breaches and damages require different valuation methodologies: the decision to involve a damages expert has a crucial impact on a party’s case. The support that a damages expert can bring includes considering and overcoming the major criticisms that are regularly voiced by tribunals on damages issues. It is not possible for any expert to fulfil this task without the effective support of counsel as the interplay between legal and economic issues is key.
Counsel’s role in the quantum phases – effective advocacy, how to claim, prove and substantiate damages
Parties are frequently criticized by tribunals for their approach to quantifying loss. By far the most common complaint is a lack of evidence, followed by wrong or unconvincing underlying assumptions, disregard of the rules on the allocation of the burden of proof and speculative claims. Also advocacy is rarely convincing. Can counsel do better?
Connecting cause and effect: the view of the economist
Causality is one of the core issues to be addressed when claiming damages. How to use techniques from economics, statistics and data science to assess factual causation and legal liability.
Taxation, currency, and pre-award interest in damages awards
The treatment of tax and currency issues can have a significant effect (overcompensation and undercompensation) on the net amount of damages received. Similarly, pre-award interest can make up a significant part of the total damages awarded. However, these issues have been given limited attention by tribunals and parties in dispute.
How to get the money: enforcement funding and asset tracing
Winning an arbitration without getting the awarded money is of little satisfaction. Being prepared to enforce, including tracing assets, is key. How a TPF can support.
Is arbitration in Italy different? The economics of “Italian” arbitrations
Arbitrations seated in Italy (or governed by Italian law) often have some distinctive features when it goes to economics (type of damages, tax aspects, players involved etc.). A focus on the Italian practice and market.
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