To Hot Tub or Not to Hot Tub? - Chapter 13 - Investment Treaty Arbitration and International Law - Volume 12
Originally from Investment Treaty Arbitration and International Law - Volume 12
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?
MR. JOSÉ ALBERRO: Good afternoon. During this last session we will talk about hot tubbing as a way to mitigate the concern that damages experts may be hired guns with a tendency to present biased or incorrect views.
We have an outstanding panel. I will introduce them in the order in which they will make their remarks. On my right, our two authors who have prepared two extraordinary paper. First, Matthew Morantz, who is an associate in the New York Office of Curtis Mallet, will talk in favor of hot tubbing; and then Tessa Hayes, who is an attorney in the Geneva office of Lalive, will argue against it.
Then, on my left, Hermann Ferré, a partner in Curtis, Mallet Prevost; Benjamin Sacks, who is a principal in the office of The Brattle Group here in Washington; to his left Miguel López Forastier, who is a partner in the Washington office of Covington & Burling; and last but not least, at the very end Tim Nelson, who is a partner in Skadden in the New York office.
We will keep the same format as before. Each author will have about ten minutes, and then we will try to stimulate a conversation among the panelists and with the audience.
MR. MATTHEW MORANTZ: Thank you very much for that introduction. Okay, I realize that I am sitting in front of a mostly common law lawyer audience, and I am not going to attempt to convince you that hot tubbing should replace cross examination in international investment arbitration.