example, the Respondent’s case is clear in the opposing Expert’s report, where such bias - whether the report is technically strong or not - totally dilutes the effectiveness and impact of the report. As Sellers’ Inspector Clouseau famously once said, “but the facts, Hercule, the facts!” What are the challenges and complexities with providing expert opinion on matters concerning investorstate arbitrations and or investor-investor matters? In Investor-State matters we see two common issues. One issue is that in such cases many of the potential exhibits potentially in possession of the Respondent clearly must have existed at some stage, but are not discoverable as they are either not traceable or completely ‘lost’, which impairs our ability as Experts to then accurately opine. On the other hand, particularly with Investors who may have been at an early stage of corporate and project development at the time, the Investor did not pay enough attention to papering the situation effectively enough at the time, so even though a particular position could be inferred, it cannot be proven because the paperwork (e.g. Accounts, Budgets, or Contracts) were either weakly drafted or entirely non-existent (e.g. ‘handshake’ agreements). What are your obligations as an Expert Witness and how do you gauge your success and or input? We believe, as Expert Witnesses, that our primary obligation is to speak truly and objectively to the Tribunal or the Court as the case may be. We are happy to be instructed and to be well-instructed. However, the combination of the facts of the matter as represented in the exhibits, combined with the past knowledge and experience we bring to the table as Experts, by and large, determine the content of our Witness to the Tribunal or the Court. We gauge success in a few ways: how we feel about our report and witness ourselves, the feedback we get from our own counsel, as well as the response of the opposing Witness and Counsel - it is often clear whether points have been scored or games won based on the reactions in the room while providing testimony. What is the most interesting case you have worked on and why? We’ve worked on a few that were very interesting, including v. Large Mining co vs State on a patent matter and v. Large Mining Co. vs v Large Mining Co in an M&A matter, v. Large State v. Small Mining Co. in an Investment matter, and Small State v. V.Small Investor (basically a sole trader) in an Expropriation case. Perhaps the most interesting was the State v. V.Small Investor, where the Claimant (for whom we were acting) died, so the case went quiet for a long while but was then resuscitated by his Estate whom we ended up acting for again - but instructed by entirely new Counsel - in the final Arbitration. WWW.LAWYER-MONTHLY.COM 11
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