Experts’ views on their role – 4th Round Table.
Contribution by Maurice Nussenbaum – published in the Revue de l’arbitrage No. 2-2015
Experts reflect on the challenges of their role in arbitration – In order to gain a comprehensive overview of the legal and technical analyses, it is essential that they have access to all available information.
In the specific context of expert reports commissioned by a party in the context of a dispute brought before an arbitral tribunal.
In most arbitrations, the financial expert’s remit is to determine the amount of loss or to challenge the figure calculated by the opposing party’s expert.
As the loss is the direct consequence of the fault, it is obviously necessary for the financial expert to be fully involved in the legal and/or technical analyses in order to ensure that the resulting financial analysis is consistent and relevant, particularly with regard to the analysis of the direct link between fault and loss or the analysis of the counterfactual scenario.
Damages cannot be deduced simply from an observation of the facts. It most often involves an economic and financial analysis based on assumptions regarding the counterfactual scenario, which the expert must be able to defend whilst maintaining their independence and impartiality, even if they are partly influenced by the party that appointed them.
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