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Thought Leaders - Arbitration Expert Witnesses 2020

Q&A

WWL Ranking: Thought Leader

WWL says

Andrew Flower is one of the foremost names in the French market with over two decades’ experience across diverse sectors, including infrastructure, utilities, and aerospace and defence.

Questions & Answers

Andrew Flower has over 25 years’ experience in providing expert evidence on quantum issues in international arbitrations – both commercial and investor-state. He has provided evidence in arbitrations conducted under the auspices of many arbitral institutions. He has been appointed by the ICC Centre of Expertise as a tribunal expert; provided advice to parties in post-transaction disputes; and acted as the determining expert. Andrew was previously the global head of disputes at a big four firm.

What did you find most challenging about entering the field of international arbitration?

I fell into the world of expert testimony more by accident than by design, and my first matter was a major inter-governmental arbitration that culminated in a hearing at the Peace Palace in The Hague. At that time the expert world was one of hobbyists. My boss then only did the work because he was also the firm’s risk partner and thus had good links with lawyers. The initial challenge was to develop expert work in arbitration as a defined “service offering” and help bring it to where it is today, with the array of expert lists and the like. You have been involved in arbitrations across North America, Europe and Asia. What do you enjoy most about working on such an international level?

It’s slightly ironic writing this in lock-down, but I genuinely enjoy working across cultures in an international context and visiting parts of the world I would be unlikely otherwise to visit. Having said all that, we do need to think carefully about the impact on the planet, and I think we will learn useful lessons from this period of enforced confinement.  

How has your practice evolved since moving from a big four accounting firm?

In a firm the size of my previous employer, the provision of expert evidence is a minor specialist area and one that faced challenges in attracting the attention of leadership and investment. Conflicts were huge and ever more problematic. At A&M, it’s a core service line, free of conflicts and one in which the firm is investing in to develop – bringing on board seasoned experts around the world and developing and strengthening the existing team. I am delighted to be part of the leadership team driving this forward. It’s also nice to be able to act on matters (especially investor-state) where previously I would I been barred from acting. 

What issues are expert witnesses facing as competition continues to intensify in the market?

I’ve said previously that the expert community has been getting a bad rap of late: either for being ships passing in the night or showing an unwillingness to work with opposing experts. I am not sure the fault lies with the expert community, but I think one impact will be more disclosure and commentary by tribunals in awards (and thus the press) on whether or not experts have been helpful in assisting tribunals render awards and on the quality of their evidence generally. This ties to the general move to greater transparency we are seeing in arbitration as a whole.

To what extent are delays in the issuance of awards affecting your arbitration practice?

The delay in the issuance of awards is a blight on arbitration as a whole and not just the expert community. Steps are being taken to reduce the problem, and these can only be encouraged. It’s critical to the future of arbitration.

What trends are you seeing emerging in the types of disputes currently going to arbitration?

I am writing this in covid-19 lockdown in France – I don’t think it takes a crystal ball to see that force majeure and hardship defences will dominate international arbitration (both commercial and investor state) over the next years, if not the next decade, across all industries and business sectors. 

What steps can younger experts take to improve their chances of getting testifying appointments? Is there an important role to play here for experienced practitioners?

I think it is critically important for someone new to attach themselves to a good mentor: someone who sees the need to bring on new talent and give an opportunity to the next generation. This was something I was told early on and took to heart. I am also proud to have been able to offer that opportunity to a number of people in my teams over the years. In practical terms getting testifying roles can be done in a variety of ways: jointly signed reports are one; identification of relatively “simple” cases another. Clients may also be attracted by cost savings where a younger, less experienced expert is used or where it has a series of similar matters and needs to spread the testifying load.

WWL says

Andrew Flower is held in high esteem by market sources, who consider him a top choice in France for providing expert testimony in high-value arbitrations.

Questions & Answers

Andrew Flower has over 25 years’ experience providing expert evidence on quantum issues in international arbitrations – both commercial and investor-state. He has provided evidence in arbitrations conducted under the auspices of many arbitral institutions. He has been appointed by the ICC Centre of Expertise as a tribunal expert; provided advice to parties in post-transaction disputes; and acted as the determining expert. Andrew was previously the global head of disputes at a big four firm.

On what sorts of matters are you most active at present?

Throughout my career, I have worked on a wide variety of matters, both geographically and by industry. Certainly, one sees hot spots from time to time (renewables and government regulation, for example) but the broad spread remains across both commercial and investor-state matters. Long may this continue, as it’s one of the fascinating elements of the work. That being said I am writing this during the pandemic – I don’t think it takes a crystal ball to see that force majeure and hardship defences will dominate international arbitration (both commercial and investor-state) over the next years, if not the next decade, across all industries and business sectors. 

In which areas of your practice have you seen an uptick or downturn recently? What do you think is driving this?

One specific area of my practice that has changed over the last several years has been the increasing use of some form of joint expert statement (“JES”) or witness hot-tubbing. To date, there is little standardisation of such practices (although we have begun to see institutions issuing guidance), but I think in each of the last dozen or so matters that I have been involved in which have gone the distance, this has been used. I think this is encouraging at least in part because the expert community has been getting a bad rap of late: for being ships passing in the night etc. Hopefully if tribunals direct experts to produce JES, and provide more disclosure and commentary in awards on whether or not experts have been helpful, this criticism will fall away. 

What procedural changes do you see emerging in arbitration proceedings?

Clearly covid-19 has had a significant impact on the ability to travel, and thus the necessary use of technology for virtual hearings and the like. This is a welcome move – especially with the parallel push for “greener” arbitration. It will be fascinating to see how this evolves, and we break from the shackles of this virus. My sense is some matters may return to the “old” ways of doing things, but not all by a long shot.

Do you have any tips for counsel on how to use an expert team effectively?

The obvious answer from an expert perspective is to instruct us early! While not compromising the responsibility of the expert to remain independent and with a responsibility to the tribunal, it does allow an expert (and his team) to provide input and advice on the preparation of a claim (or its defence).

Has covid-19 had an impact on commercial arbitration? Are parties willing to be flexible in procedure and approach to get disputes over the line? 

As I have said elsewhere, the use of technology has had a huge impact on the process of arbitration. As to whether covid-19 has had an impact on the conduct of parties, counsel and experts, I am less sure other than perhaps in relation to the softening of deadlines in the face of practical challenges caused by the virus. I have seen much commentary on the possible use of third-party funding being used by cash-strapped corporates, and it will be interesting to see how this evolves. 

What challenges will the next generation of expert witnesses face and how can they prepare for them?

I think it is critically important for someone new to attach themselves to a good mentor: someone who sees the need to bring on new talent and give an opportunity to the next generation. This was something I was told early on and took to heart. I am also proud to have been able to offer that opportunity to a number of people in my teams over the years. In practical terms, getting testifying roles can be done in a variety of ways: jointly signed reports are one; identification of relatively “simple” cases is another. Clients may also be attracted by cost savings where a younger, less experienced expert is used, or where it has a series of similar matters and needs to spread the testifying load.

How would you like to develop your practice in the next five years?

To continue to develop and grow the A&M arbitration team in France and across EMEA. More importantly than that, I am at a stage in my career where I need to create a legacy, pass on my contacts to the next generation of experts and to ensure that this next generation have the opportunities I had - to give evidence themselves, and to be part of the class of “future leaders”.

Looking back over your career, what has been your proudest achievement?

My very first case as a newly qualified accountant was working on the UK/US Heathrow landing charges arbitration for the UK government and a team led by Timothy Walker QC. The partner I worked for testified for over two days at the Peace Palace in the Hague. I was proud, some years later, to give my own evidence in the same room (which I have since done on several occasions).

Global Leader

WWL Ranking: Global Elite Thought Leader

Peers and clients say

"He is a brilliant valuation expert with experience on very large cases"
"He is extremely methodical and can adeptly work through large volumes of data to narrow down the issues"

Biography

Andrew Flower has over 25 years’ experience providing expert evidence in international arbitration (both commercial and investor-state). He has provided expert evidence in arbitrations conducted under the auspices of many institutions including ICC, ICDR, ICSID, DIAC, NAI, DIS, and under UNCITRAL rules. He has provided written evidence in over 150 disputes and has testified and been cross-examined on his evidence on many occasions before tribunals around the world including New York; Washington DC; London; Paris; Stockholm; Geneva; Zurich; Dubai; Singapore; the Hague and Brisbane.

Andrew has been listed by Who’s Who Legal as a leading expert in arbitration since inception of the list. In 2020 he was globally recognised as a Thought Leader in International Arbitration.

In the course of his career, Andrew has also provided advice to parties in post-transaction disputes, both in connection with arbitrations and in the context of expert determinations. Andrew has acted both as an advisor to one of the parties and as the appointed determining expert.

Andrew has been appointed as an independent expert by the ICC Centre of Expertise. He has also been appointed by a tribunal in an ICC arbitration. Andrew has also acted as mediator in a royalty dispute.

In addition to his arbitration related experience Andrew assisted Vivendi as defendant in its long running class actions suits in the New York Courts in relation to its management in the Messier era and has provided written expert evidence in matters before the English High Court. He was also one of the senior advisers to the Kuwait government in the assessment of corporate claims for damages arising from the First Gulf War.

Andrew is a fellow of the Institute of Chartered Accountants in England and Wales, and is a native English and fluent French speaker.

WWL Ranking: Recommended

WWL says

Andrew Flower is held in high esteem by market sources, who consider him a top choice in France for providing expert testimony in high-value arbitrations. 

Biography

Andrew Flower has over 25 years’ experience providing expert evidence in international arbitration (both commercial and investor-state). He has provided expert evidence in arbitrations conducted under the auspices of many institutions including ICC, ICDR, ICSID, DIAC, NAI, DIS, and under UNCITRAL rules. He has provided written evidence in over 150 disputes and has testified and been cross-examined on his evidence on many occasions before tribunals around the world including New York; Washington DC; London; Paris; Stockholm; Geneva; Zurich; Dubai; Singapore; the Hague and Brisbane.

Andrew has been listed by Who’s Who Legal as a leading expert in arbitration since inception of the list. In 2019 he was globally recognised as a Thought Leader in International Arbitration.

In the course of his career, Andrew has also provided advice to parties in post-transaction disputes, both in connection with arbitrations and in the context of expert determinations. Andrew has acted both as an advisor to one of the parties and as the appointed determining expert.

Andrew has been appointed as an independent expert by the ICC Centre of Expertise. He has also been appointed by a tribunal in an ICC arbitration. Andrew has also acted as mediator in a royalty dispute.

In addition to his arbitration related experience Andrew assisted Vivendi as defendant in its long running class actions suits in the New York Courts in relation to its management in the Messier era and has provided written expert evidence in matters before the English High Court. He was also one of the senior advisers to the Kuwait government in the assessment of corporate claims for damages arising from the First Gulf War.

Andrew is a fellow of the Institute of Chartered Accountants in England and Wales, and is a native English and fluent French speaker.

National Leader

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