Tim Hart is a forensic accountant with an outstanding record as an expert on damages, fraud, corruption and other financial issues. In over 35 years in professional practice, he served as the disputes and investigations practice leader in three global accounting and consulting firms before founding Credibility International in 2010. Tim’s expert assignments include over 60 international disputes, including more than 35 investor-state cases. Tim authored studies of damages in investor-state cases in 2021 and 2014.

What is the philosophy behind your approach as an arbitration expert witness?

The entire purpose of a client hiring an expert is for that expert to deliver credible information to the tribunal. So, credibility drives everything we do including preparation of expert reports, preparation for the hearing and ultimately testimony in front of the tribunal.

How has the dynamic between arbitral tribunals and experts changed over the years?

During my more than 25 years as a testifying expert in international arbitrations, tribunals have become increasingly more knowledgeable about damages issues. As a result, tribunals now are much more likely to ask numerous questions of the experts in the hearings. Additionally, it is more common today for the tribunal to either produce a list of questions regarding damages that they would like the experts to address or request the experts to deliver specific analyses either jointly, or separately.

If you could change one thing about giving testimony as an arbitration expert, what would it be and why?

Particularly regarding testimony on damages, cases with large damages claims might benefit from a procedural modification to have a separate chess clock for just damages. With damages normally as the last topic in a hearing, the damages testimony is often greatly compacted and rushed. It has not been unusual in cases involving hundreds of millions or billions of US dollars in claims where the party saved only 20 to 90 minutes of their time to cross examine me. With quantum of the magnitudes involved, an agreed upon separately timed damages portion of the hearing would add value.

What is the key to succeeding as an expert across multiple arbitration institutions and courts in a wide range of jurisdictions?

Consistency in the approach of carefully studying the case facts and then performing the proper analysis that fits those facts is the key for an expert having success both in a wide range of forums and over a long duration. With a consistent approach, an expert can be confident that they have studied the evidence and then effectively addressed the particular critical issues for each case.

How do you effectively prepare for cross-examination and/or hot-tubbing?

The single critical ingredient of effective preparation for cross-examination and/or hot-tubbing is pain-staking immersion in the case documents and analysis presented. There are no shortcuts other than identifying the critical issues and then developing a deep understanding of the evidence that impact those issues. Preparation of this type puts me in a position to explain complex issues in simple terms in order to assist the tribunal’s understanding.

Some practitioners report that conflict of interest rules for experts in arbitration are not tight enough. Do you agree?

As with counsel and arbitrators, when dealing with the ethical issues of conflicts, a good expert is going to steer far clear of the appearance of conflict. The expert needs to study any new case and continuously be aware as cases progress to identify issues that may present the appearance of a conflict. If any reasonable risk of a conflict is identified the engagement should be turned down or in the alternative the situation should be disclosed to the client, other party and tribunal. The last thing an expert should do is to disadvantage their client by taking on a case that has the appearance of a conflict.

How has the shift to online working and events affected networking opportunities?

Traditional networking opportunities have been extremely restricted during covid-19 but certain other opportunities have been expanded. Without the opportunity to stop by an office, meet for coffee or lunch or attend conferences in person has certainly made it more difficult to meet new people and deepen relationships. However, with the widespread adoption of video conferencing, we have had numerous opportunities to speak to the global arbitration practices of many law firms to present our 2021 study of damages in investor-state cases.

To what extent has the international arbitration community met the challenge of improving diversity in recent years?

From my vantage point, diversity has improved in the 25 years I have served as an expert as there are several women attorneys at the top of the profession both as counsel and arbitrators. I have also observed an increase in top attorneys from Latin America and Asia. From what I can see, the same cannot yet be said for attorneys from Africa or people of color from other places. On the expert side, we are starting to see more women serving as experts in international disputes but not as prevalent as I have seen with the lawyers. The experts are further behind in terms of racial diversity as experts most typically are from western Europe or the US with a smaller number from Singapore and Hong Kong.