Santiago has provided written and oral testimony in more than 40 matters involving valuation, damages and other issues before international arbitration tribunals, as well as the Canadian Superior Court of Justice of Ontario and the Court of Queen’s Bench of Alberta. He has written on damages issues in JOIA; has contributed to books published by by Oxford University Press, ICCA and UNAM; and has been recognised, over several years, among the world’s top arbitration expert witnesses as a Thought Leader by Who’s Who Legal.
Describe your career to date.
Earlier in my career I worked on economic consulting that did not involve disputes. I was involved in regulatory economics, valuation and corporate strategy projects. These early engagements presented a very interesting window into the intersection between government regulation and decision-making in private investment. My first testifying appointment felt like a natural progression from what I had been doing for a long time, even though I hadn’t planned a career as an expert.
What attracted you to a career in economics and damages consulting?
When I chose to study economics, it was all about developing a mental framework to solve real-world problems. In consulting I found a veritable laboratory where the issues took real form. The toolbox from theory becomes much more valuable when combined with real-world experience. And then the tools expand, especially if you keep an open mind and surround yourself with really smart people, which our work attracts and fosters.
What qualities make for an effective arbitration expert witness?
I’ve had the privilege of seeing a lot of people testify (in both US court and arbitration) and I think it’s down to three core issues. The first is the ability to listen, because without it the examination (in cross or by the tribunal) becomes disjointed and ultimately unhelpful. The second is a deep knowledge of the case. Finally, there’s the ability to translate the work into intuitive ideas. Even though a lot of technical work has built towards the current body of literature in financial economics, the ability to explain it intuitively, including its applicability to a given case, is something the expert should assist the tribunal with.
What inspired your recent move to Berkeley Research Group?
There was a strong pull from a number of factors. First, the opportunity to work with Daniela Bambaci to staff and expand a world-class arbitration team. BRG already had one of the highest number of top experts ranked by WWL in construction, economics & damages, telecoms and energy, and these people span a global footprint – from the US to Hong Kong and Singapore, with a strong London presence. Having the agility and flexibility of structure to take all of that into cases where issues go beyond just quantum makes the work incredibly interesting and makes us more valuable to our clients. BRG was founded by many of the same experts I started my career with. So, in a way, it’s a full-circle return to the roots.
How has the Chinese Belt and Road Initiative impacted the nature of cases you have been seeing recently?
A large majority of our recent instructions has come from matters arising as a result of disputes in Africa. It’s tempting to draw a correlation with the Chinese Belt and Road Initiative, and in some cases, the relationship exists. But we also see many commercial disputes with no apparent connection. This includes, for example, matters where the causes of dispute precede investment in the Belt and Road Initiative, and those that stem from country-specific issues in jurisdictions that have not yet been actively pursued by Chinese investment.
What are the main challenges you face when handling high-value disputes relating to projects in Africa?
The issues that arise in Africa damages cases are diverse and fascinating. They provide us with that real-world laboratory I mentioned earlier, where we reconcile theory and practice. How do you reliably measure an investment’s exposure to country risk for a country with no traditional risk indicators? How do you find market evidence when a particular market was just being born and never actually got to develop?! This is where the toolbox from economics becomes critical. The work entails applying and referring to decades of financial economics literature that has been developed in mature markets, and that can be tested on real-world problems. Then damages assessment is no longer an accounting exercise, it’s developing a supply-and-demand model, and one that can be robust enough for a tribunal to understand and rely on in their decision-making. It’s a very big responsibility for those involved. I feel like we are barely scratching the surface in Africa. For us, the tide has been so strong in the region that we are in the process of opening an office in South Africa.
As co-chair of the firm’s economics and damages practice, what are your priorities for the group’s development over the next five years?
On the broader economics work, it’s about identifying opportunities where we can assist clients in moving forward. In what forms and from which sources are investments coming? In what new product or service are markets being created? Beyond the geographic or industry trends, deeper analysis of these issues often reveals disruptive events, and those tend to present opportunities to apply skills that we have in-house to problems we haven’t thought of before. We will continue to prioritise attracting expert talent, but – critically – to find ways to use that talent that haven’t been deployed before – that’s the real differentiator.
In arbitration, we are in a very interesting transition. While there’s understandable desire for greater speed, standardisation and cost reduction, there’s also an increasing number of disputes involving very large sums. Against this backdrop, there’s risk that arbitration may continue to fracture between ultra-high-stakes disputes and “the rest” of the disputes, and this could present a serious problem in the quality of expert evidence and legal representation. I’m working to bring and develop the client-service culture that my team and BRG are known for into arbitration matters, so that we think of all stakeholders as clients – from the tribunal to counsel and everyone else involved.
And across the firm, even as we continue to grow, we will retain the agility and flexibility that allows us to do the best work for our clients, with the right teams in the location they’re needed, as efficiently as possible.
What advice would you give to someone hoping one day to be in your position?
Be genuinely curious about people; it’s not just about business and economics. What are these fields without people? Also, tread between specialisation and diversity. Do a bit of the opposite of what you intend to do: if you want to be a theorist, dive into practice as well, and vice versa.