Practical Tips for Conducting International Arbitrations

Deepankar Sanwalka

July 2011

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Agenda

Resolving User Dilemma11

Effective Dispute Resolution 22

Expert Witness – ‘Opinion Matters’33

Resolving User Dilemma

3

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Resolving User Dilemma – Why Arbitration?

Resolving

User

Dilemma

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Resolving User Dilemma (contd.)

Resolving

User Dilemma

Neutral, speedy and expert dispute

resolution process

Single centralized forum , choice of

sole or presiding arbitrator

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Resolving User Dilemma (contd.)

Resolving

User Dilemma

Less expensive and time

consuming than fully litigated

cases

Use of “best practices” in areas

such as the taking of evidence,

disclosure

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Resolving User Dilemma (contd.)

Resolving

User Dilemma

The arbitration award is final and

limited right of appeal to the courts

Arbitrator decisions are legally

binding thus avoiding additional

cost of parties going to the court

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Resolving User Dilemma (contd.)

Resolving

User Dilemma

Arbitration proceedings are not a

public hearing

Process is less adversarial than

litigation which helps to maintain

business relationships between the

parties

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Disputes – Not just a Question of Law

Commercial & Industrial Activity

Agreements & Contracts Mergers, Acquisitions & related Transactions

Buying, Selling, Leasing, Borrowing, Lending or Investing

A situation where facts, people and organisations do not agree, or where financial or other business related behaviour may not comply with expectations.

What & How Why & Who

Accounting/ Commercial Issues

Legal Issues

Legal Team+Effective Dispute

Resolution=Expert Witness

Effective Dispute Resolution

10

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Structured Approach for Dispute Resolution

Identification of key issues

Knowledge of court procedures & evidence

Presentation of information & expert witness assistance

Interpretation of information

Data management for discovery process

Unique Skill Sets

Blend of forensic accountants, lawyers & personnel with law enforcement background

A Forensic mindset

Accounting issues have to be approached in a manner consistent with the expectations of a court of law. Experience in international arbitration and dispute resolution.

Leveraging Technology

Use of forensic data analysis tools to sift through millions of lines of data to determine key accounting issues & backup assertions in plaints or contentions.

Expert Witness – ‘Opinion Matters’

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Ensure the evidence is correctly understood

When - Expert Witness ?

13

Key areas of the case are to be covered by expert

evidence

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Why - Expert Witness ?

14

Expert witness, particularly accountants advising on quantum,

can add value to settlement negotiations.

This could involve analysing

Nature of the claim and identifying those areas where it can be

improved

Aspects which will be vulnerable to evidence provided by the other

party

EXPERT FORENSIC SKILLSET

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How Expert Witness can be Beneficial?

Outside of fraud, financial disputes that require complex quantification modelling or ‘what if’ calculations are those in which experts will be

most beneficial. Such experts would be best used providing a critical assessment of the facts and assumptions underlying the loss as well

as the quantification itself

In relation to forensic accounting, it is those cases where the issue of quantum is most difficult to resolve and where the

calculation of the amounts of damages may be very complex

F-Tech Capabilities: Data Analysis Digital Data Recovery Electronic Data Recovery

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Independence – The Key Criteria

16

Whilst the parties to the dispute are essential to the factual background and impacts on the business, it’s not unusual for them to become emotionally involved in the proceedings.

Equally, the advice of their incumbent accountants or tax advisers can be tainted by the importance to them of focusing always on doing their best to support their client

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Thank you!Deepankar SanwalkaHead – Risk Consulting , KPMGe-Mail: dsanwalka@kpmg.com Tel: +91 (124) 307 4302Mob: +91 9810184390