Originally from Investment Treaty Arbitration and International Law - Volume 12

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Valuation experts seem to suffer from the same “usual suspects” problem as arbitration counsel: the very same people keep appearing over and over again in hearings. Whereas there’s absolutely nothing untoward about counsel as hired gun, some would argue that it’s inimical to the role of expert for valuators to be seen as hired guns, or as de facto extensions of the litigation team. Maybe the lis inter partes model is part of the problem. What if tribunals mandated hot tubbing of valuators, to generate an atmosphere more conducive to cooperation?

I. INTRODUCTION

The topic to be addressed by our panel raises three main questions.  First, is it inimical to the role of the expert for party-appointed experts to be, or be seen as, “hired guns” or “extensions of the litigation team”? Second, if so, is there a problem with repeat appearances by valuation experts? And finally, is “hot-tubbing”, or witness conferencing – i.e. joint questioning by the tribunal of both sides’ experts together – the way to fix these problems?

My answer to these questions is “no”.  While party-appointed experts should not be “hired guns” in the sense of lacking integrity and genuine belief in their opinions, it is not untoward for party-appointed valuation experts to work alongside the legal team to present a case (Section I).  Secondly, the mere fact that valuation experts appear with frequency does not make them “hired guns” (Section II).  Finally, and in any event, hot-tubbing cannot solve the problem of “hired gun” experts (Section III).

To be clear, this is not a referendum on the use of witness conferencing in general.  There may well be situations in which it is useful for the tribunal to question multiple expert witnesses at the same time in order to clarify differences or pinpoint areas of disagreement.  However, tribunal-mandated hot-tubbing is decidedly not the solution to the suggested problem of repeat appearances by valuation experts.