Roula is a partner in Accuracy’s London office, working in its forensics, litigation and arbitration practice. She is a fellow of the ICAEW. Roula specialises in contentious valuations and the assessment of complex damages in high-value international arbitration and litigation cases. She has been valuing companies, listed and unlisted securities, and intellectual property rights in commercial and contentious contexts since 2000. Roula has been appointed as expert witness on numerous occasions, and has testified in English and French.
In what ways has expert practice changed since you started practising?
Expert practice has become more professional since I started practising. I encounter fewer “dabblers”, in particular in share/JV valuation and damages assessment. This means that a minimum standard of competence, quality and rigour is typically upheld. Most experts testifying on disputes are now professional damages experts, so they have a reputation to uphold, especially in litigation cases and arbitrations in which the judgments and awards are public, eg, ICSID. Moreover, judges (and arbitrators to a lesser extent) increasingly “name and shame” experts who misbehave and do not comply with their duties. Finally, the role of the expert, and in particular their obligation to be objective and independent, is better understood by clients and lawyers who, therefore, put less pressure on their expert to take extreme positions in their favour.
You have experience with both commercial and investment treaty arbitrations. What are the main differences between the two from the perspective of an expert?
I see two main differences. First, in commercial arbitrations, the primary issues at stake, including the main legal issues affecting damages assessment, are related to the interpretation of the relevant contracts. Investment treaty cases involve broader considerations such as public interest, where regulation ends and expropriation or breach of FET starts, and resulting difficulties in defining the “but for” scenarios and the respondent’s legitimate conduct in those scenarios. Second, whereas awards in commercial arbitrations are confidential, awards in investment treaty cases are often made public, so experts tend to be more balanced in investment treaty cases. Experts are also more careful on those cases about taking general positions – for example, when acting for the claimant – that are inconsistent with those they have taken in the past when acting for the respondent.
You have worked on cases for third-party funders in assessing the damages of a case. What do you enjoy most about such cases?
I have assisted third-party funders in deciding whether or not to invest in disputes. My role in this context is more akin to that of a valuation adviser in a potential transaction, so none of the pressures and limitations of acting as expert witness apply. For example, I do not need to worry about drafting and explaining technical points in layman’s terms, as the main reader of my damages assessment note would be financially trained. Also, what matters to third-party funders deciding whether to invest is less the absolute amount of damages than how low damages could fall if conservative, but still reasonable, valuation inputs are used. So my work is similar to running sensitivity analyses to estimate damages in reasonable worst-case scenarios. It also involves playing devil’s advocate and anticipating the potential counter-arguments of the (typically) respondent’s expert, and potential alternative data sources they are likely to use in arriving at lower damages.
What do clients look for in an effective arbitration expert?
Clients look for a number of potentially contradictory qualities in an effective arbitration expert. Competence and relevant experience are now a given. Clients look for a convincing and impactful expert who can clarify complex concepts to a tribunal without sounding patronising, and therefore will be trusted by the tribunal. Tribunals will trust experts who are reasonable, as objective as possible, and willing to accept that alternative positions can be taken, especially on different facts or instructions. However, clients also look for an expert who is flexible enough to listen to the clients and potentially adapt their opinion as a result of the arguments and/or data the clients put forward. There is often a delicate balance to be found, as experts will be less convinced – and so less convincing – the more the clients push them to the edge of reasonable positions the experts are comfortable taking.
How does Accuracy distinguish itself from competitors in the market?
Accuracy operates as one partnership with one P&L across all its practices and offices. This means that Accuracy partners are incentivised to cooperate and put together the best possible team for each engagement, regardless of that team’s location. As a result, most of our dispute engagements include colleagues from different offices and with varied experience working seamlessly together. Also, many of our arbitration engagements involve two partners, or a partner and a director, co-signing the expert report and possibly co-testifying. This enhances the quality of our reports and testimony, and it also allows young practitioners to testify earlier in their careers and in a safer environment than in other firms. This makes lawyers’ and clients’ decisions easier, as they do not have to choose between the “star”, highly experienced expert who will be hands-off, and the younger, “hungry” expert who will be hands-on. They get the benefit of both.
What advice would you give to practitioners hoping to be in your position one day?
I still feel more in a position to ask for advice than to give it! However, I would recommend building your network very early in your career, remaining principled even if it could lose you engagements, and specialising in areas that truly interest you because the hours are long and hard work is a constant feature.
Where, in your opinion, does the future of the practice area lie?
I would expect more competition and diversity of experts as interest in the expert witness practice grows and it continues to become more professional, and hopefully better-quality analyses, reports and testimonies.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
I would like to start acting as arbitrator, ideally on the quantum phase of bifurcated cases. In my experience, in particular on expert determinations, damages assessment and valuation questions are more efficiently dealt with by subject matter experts.
Roula Harfouche enjoys “a great reputation in the market” thanks to the impressive expert testimony she delivers in high-value international arbitration proceedings.
Roula is a partner in the London office of Accuracy, forensics, litigation and arbitration practice. She specialises in contentious valuations and the assessment of quantum issues in international arbitration and litigation cases.
She has been valuing companies, listed and unlisted securities, and intellectual property rights in commercial and contentious contexts since 2000. She has a broad range of experience in the assessment of complex damages in high-value international arbitration and litigation cases in matters involving breaches of contract, investment treaty claims, transaction-related disputes and intellectual property infringements.
Roula has been appointed as expert on numerous occasions and has testified in English and in French. Roula has also acted as an independent expert appointed under a shareholders’ agreement or joint venture agreement to determine the value of shares or joint venture interests.
She has been actively involved in over 50 contentious cases, and has worked on matters in LCIA, ICC, SCC, HKIAC, PCA and ICSID arbitration forums and under the UNCITRAL rules, before the UK High Court, the UK Family Division, and Patents Court, as well as in mediation.
Roula is a fellow of the Institute of Chartered Accountants in England and Wales and a member of the Society of Share and Business Valuers. She holds a graduate diploma in business studies from the London School of Economics (LSE) and from a French business school (EDHEC), and an MSc in management (distinction) from the LSE.