Mr Deepankar Sanwalka, Executive Director, KPMG

Report
Practical Tips for
Conducting
International
Arbitrations
Deepankar Sanwalka
July 2011
Agenda
1
Resolving User Dilemma
2
Effective Dispute Resolution
3
Expert Witness – ‘Opinion Matters’
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
1
Resolving User
Dilemma
2
Resolving User Dilemma – Why Arbitration?
Resolving
User
Dilemma
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
3
Resolving User Dilemma (contd.)
Resolving
User Dilemma
 Neutral, speedy and expert dispute
resolution process
 Single centralized forum , choice of
sole or presiding arbitrator
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
4
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
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
5
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
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
6
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
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
7
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
Expert Witness
Legal
Issues
+
Legal Team
=
Effective Dispute
Resolution
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
8
Effective Dispute
Resolution
9
Structured Approach for Dispute Resolution
A Forensic mindset
Identification of key issues
Knowledge of court procedures &
evidence
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
Data management for discovery
process
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.
Interpretation of information
Unique Skill Sets
Presentation of information & expert
witness assistance
Blend of forensic accountants, lawyers &
personnel with law enforcement
background
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
10
Expert Witness –
‘Opinion Matters’
When - Expert Witness ?
Key areas of the case are to
be covered by expert
evidence
Ensure the evidence is
correctly understood
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
12
Why - Expert Witness ?
Expert witness, particularly accountants advising on quantum, can
add value to settlement negotiations.
EXPERT FORENSIC
SKILLSET
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
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
13
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
F-Tech Capabilities:
 Data Analysis
 Digital Data Recovery
 Electronic Data Recovery
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
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
14
Independence – The Key Criteria
 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
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
15
© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
in.kpmg.com
Deepankar Sanwalka
Head – Risk Consulting , KPMG
e-Mail: [email protected]
Tel: +91 (124) 307 4302
Mob: +91 9810184390
Thank you!
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