Mr Milburn is a managing director at Secretariat Advisors (Canada). He is a chartered professional accountant, certified management accountant (CPA/CMA), a chartered Business Valuator (CBV) and is a qualified valuator under the Canadian Institute of Mining’s Valuation Standards and Guidelines (CIMVAL). He has over 20 years of experience in the quantification of economic damages and the valuation of business interests in the context of international arbitrations, litigation and consulting.

Which key qualities and attributes do effective expert witnesses need to possess?

Effective expert witnesses need to be able to provide reasonable, well supported opinions, retain their objectivity and independence throughout the dispute process and be able to clearly explain complex issues in simple terms.

What do you think is driving the increase in hot tubbing in arbitration proceedings?

I have not seen an increase in the use of witness conferencing in my cases but do think it should be used more frequently. In my view, direct interaction between the experts, guided by questions from an arbitral tribunal, is an efficient way for the arbitral tribunal to get to the heart of key issues and can lead to agreement and compromise between independent experts.

What impact will the move away from carbon-based energy have on the mining sector and the types of disputes you expect to see?

The transition from carbon-based energy over the coming decades will impact the types of mining projects that are developed as commodity prices adjust to reflect new supply and demand profiles for different minerals. It will also impact mining operations and costs as renewable energy sources are used to power operations and electric vehicles become the norm.

In terms of future cases, we have already started to see cases where coal producers are bringing claims for the improper cancellation of long-term projects (such as the RWE AG v Netherlands) and I expect that will continue. A shift away from carbon-based energy will increase the dependence on battery technology, which requires many different types of minerals such as lithium, cobalt, nickel and cadmium. As those minerals become more important, and subject to new technologies or substitutes being developed, I believe we will see more disputes involving projects mining those minerals (such as the recent Chile v Albemarle arbitration case over royalties).

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

Getting experts involved early to assess the facts and key expert issues help counsel assess the strengths and weaknesses of the case, develop its legal case theory, and manage client expectations. A last-minute expert analysis/report is never ideal and can compromise the quality of an expert analysis. Keeping open communication with the expert team is also key to ensure experts are on track with their assignments through periodic update calls, and the preparation of work plans and report outlines.

How can clients minimise the risk of disputes arising?

In arbitrations involving natural resource projects, for example, many of the disputes arise from a complex interaction between environmental, social, economic and political factors. One possible way to avoid disputes in these cases is to ensure licences are obtained lawfully and without an appearance of attempting to circumvent the rules, by engaging meaningfully with local communities to obtain the social licence to operate and operating in an environmentally conscientious and sustainable manner.

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 serve as an arbitrator in future to deal with damages issues as I think that is something that could improve the arbitral process since typically arbitrators are very experienced legal professionals, yet they are deciding not only legal issues but also complex damages issues involving millions or billions of dollars. In my view, having damages experts on arbitration panels to help formulate and provide detailed explanations for the basis and determination for the damages awarded would be very useful.

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

A major challenge for all young experts is being retained on cases they can testify on to establish themselves. This has been very difficult during covid-19 due to the inability to build relationships with lawyers and potential clients in person at conferences and meetings and hearings. If videoconferencing continues to be highly used post-covid-19, this will continue to be a challenge for experts. Young experts can increase their profile through article writing, presenting on conference panels, connecting one-on-one with counsel and potential clients where possible (even if by video) and seeking co-testifying opportunities on cases where they are working with more senior experts.