GAR 100 - 15th Edition

Charles River Associates

Charles River Associates

Professional notice

Are professional expert witnesses a “good thing”? Can those who make a living as a hired gun be, well, objective?

In fact, there’s good evidence of the opposite: that those who testify become more objective – ie, scrupulous – about their positions.

A leading arbitrator, Doug Jones AO, put it this way at a GAR Live Dubai: “Repeat experts [. . .] are a good thing [because] they get to realise that their own personal reputations depend on avoiding extreme positions which are unsustainable.”

“They get to understand that they [are] more effective if they put forward fair propositions that they personally find intellectually justified,” he explained.

Once bitten, twice shy, as the saying goes.

Repeat-player experts are also a boon when building the case, he reported. From his days as a counsel he remembered how “having a view from a battle-hardened expert could help to impart a more realistic view of the case” to a truculent client.

“You could talk them down from an extreme position. It’s a very positive thing for the process,” Jones said.

Of course, there are exceptions – stories circulate from time to time of unscrupulous experts taking diametrically opposed positions in different cases, which is possible thanks to arbitration’s confidentiality (leading to discussions of how to police such behaviour).

But, for the most part, giving evidence repeatedly appears to forge a more principled, and thus credible, expert.

Of course, there are different types of expert – it’s not always just about lost profits and damages. Do those other types of expert need to be battle-hardened too?

Ideally, it would appear. Consider a dispute about a project to build and operate a gas processing plant in, say, Nigeria. The claimant in such a dispute might need three or four experts: an engineer or construction specialist to speak to project management points; a chemist to speak to the quantity of gas the plant would extract; an oil and gas economist on how much that gas might fetch on the market; and, finally, a forensic accountant to present all the above in a set of convincing accounts.

If one side’s experts are all old-arbitration hands and the others aren’t, what happens?

There’s a good chance that the side with ringcraft gets the upper hand. The scenario above isn’t in fact a hypothetical; it’s exactly what happened in one recent case, which duly produced one of the largest reported commercial arbitration awards – around US$9 billion owed by the losing side.

In a conversation with GAR, a lawyer for the victor credited a mismatch between the experts – and in particular the powerful performance of his team from well-known expert witness shop Berkeley Research Group – as a big part of the result.

He said that his experts team – skilled in four disciplines – mobilised faster and produced a report within a tight timetable that put the other side on the back foot, “from which they never really recovered”.

Furthermore, the other side’s experts had less hearing experience, which meant that, at times – he believed – they fell into the trap of over-reaching.

“They lost credibility as a result.”

If “repeat” players are better, and you might require several different types, how can those who are the genuine article, rather than just pretending, be found?

The report you are reading – the expert witness section of the GAR 100 and the tables in it – should help.

It uses the same lens as the GAR 30 to identify the most active and sought-after expert witness firms: it takes the number and size of a practice’s hearings and uses those to make a ranking. As with this publication’s survey of law firms, we used a research period of 1 August 2019 to 1 August 2021.

We present our findings in a series of easier-to-navigate tables:

Table 1

Table 1 is the GAR 100 Expert Witness Firms’ Power Index.

It displays:

  • the average value of a firm’s hearings;
  • total hearings participated in, over two years;
  • total “disaggregated” hearings (can be different from total hearings if, say, four partners take part in the same hearing); and
  • reputational clout.

We standardise and then weight these scores to give an overall ranking.

Thus, the Power Index ranks expert witness firms in a similar way to how we rank law firms in the GAR 30: by looking at the volume and value of two years’ worth of hearings and at reputational clout.

We added the reputational clout element last year, following readers’ suggestions.

Secondary tables

We then present a range of related tables.

Table 2 is an extract of the Power Index. It shows the number of members of a firm selected for our sister publication, Who’s Who Legal: Arbitration (2022). It also shows how many of those were in the top 10 per cent during research. These are then tagged “Global Elite Thought Leaders”.

Tables 3a and 3b show the number of cross-examinations faced by a firm’s members.

Tables 4a and 4b show how different firms split between investor-state and commercial work.

Table 5 shows how many hearings were about energy, and within that how many were about traditional oil and gas.

Tables 6a and 6b show how many hearings were construction work.

Table 7 recalculates the Power Index – but without any construction hearings included.

It’s important to point out a few things that don’t go into the Power Index ranking too.

First, results. As with the GAR 30 ranking for law firms, it doesn’t matter how well the firm did on a case. The tribunal might have accepted the expert’s analysis in full and given them a glowing commendation. Currently, we don’t give anyone extra credit for that (perhaps we should). Equally, they could have lost and been hit with US$58 million of costs (as in one notable example). Win or lose is all the same for the purposes of the Power Index.

Second, business success. It is also irrelevant how the practice in question is doing as a business. A shop can be growing, shrinking, making lots of money, losing it. Once again, it’s all the same for the purposes of our survey. All that matters is the number of hearings, the value at stake in those and how the firm in question does in our peer review survey – Who’s Who Legal.

With that out of the way . . .

Where does our data come from?

Our data is, for the most part, provided by expert witness firms. Where a firm hasn’t given certain pieces of information – the value of a claim, for example – we triangulate with other questionnaires (including those of law firms) to fill in the blanks.

Once again, we include a column for “disaggregated” hearings”. Sometimes, an expert firm will provide more than one expert to a hearing. Now, if a firm has four experts taking part in the same hearing, it gets a 1 for unique hearings (it is one unique hearing) and a 4 under disaggregated hearings (each of those four experts experienced being in a hearing – hence 4).

To measure reputational clout, we use the 2022 editions of Who’s Who Legal: Arbitration

We standardise all data (using T-scores) and adjust for missing information (using P-values), before being combined into a final score. There is some weighting added too – the work-related elements count for 70% of the score.

The GAR 100 Expert Witness Firms’ Power Index

A few headline facts from this year’s table: nine rise, 12 fall, four enter and four stay put.

In addition, we have:

  • a new number one;
  • a change in the top five;
  • one big riser who just misses the top section;
  • some notable fallers; and
  • another four new firms, taking the total to 29, including one firm that slots straight into the top half.

Table 1

 

One to five

In this section of the table we see:

  • a change at the top;
  • Secretariat returning to the top five; and
  • a different but not unfamiliar set of names.

Compass Lexecon is the new number one, following two years just below (it was second in 2021 and third in 2020). Although it isn’t the highest-volume practice, its 62 disaggregated hearings nevertheless place it in the top five for that metric this year. Meanwhile, the average value of those hearings, US$662 million, is near the top end; only one other firm in the top 10 is higher (The Brattle Group). Compass Lexecon is also near the top of the reputational metrics, with 19 WWL listings, of whom more than one-third are Who’s Who Thought Leaders * (* this refers to the Global Elite segment of our Thought Leaders series: equivalent to WWL’s top ranking, comprising the top 10 per cent of individuals in a discipline). The firm is therefore in the top five for all four metrics – volume, average value and both WWL rankings – and the very top for Global Elite Thought Leaders. Only two other firms achieve a top five ranking in even three categories (and they are FTI Consulting and Secretariat, who we’ll get to in a moment). It is, in short, a worthy number one.

FTI Consulting falls to second this year, behind stablemate Compass Lexecon. We commented last year that it was hard to imagine FTI Consulting being dislodged from the top position because of its “extreme” volume of work coupled with a very respectable average claim value. However, this time around, its volume was less extreme (in part owing to a change in the GAR accounting process) if still by some distance the highest in the table (its numbers fell from 223 to 155 disaggregated hearings). No firm can match its US$40.3 billion total claim value, but this was spread across 60 more hearings than anyone else, resulting in a middling average claim value (US$325 million; only 12th best). The lower volume and lower average per claim were enough to drop its ranking by one. Despite this, its numbers remain exceptional and in many ways it is still the firm others want to beat.

Secretariat re-enters the top three, from seventh last year. Although its volume of unique hearings (54) was identical, the average value per claim increased by over US$220 million, from US$341 million to US$565 million. Across all firms, only Compass Lexecon matched or exceeded Secretariat in both volume and average value. In the reputational columns, only Compass Lexecon (with seven) has more WWL Global Elite Thought Leaders than Secretariat’s five, and the latter’s 21 WWL names is third behind only Kroll and FTI Consulting. Several of these WWL names are recent lateral hires. They include names from Versant Partners – a top 10 firm in last year’s Power Index – which it bought in August 2021. Versant’s figures, however, are not incorporated into Secretariat’s for this year’s table. So, depending on the value at stake in those, we might see Secretariat pushing FTI closer next year. At the very least, its volume-related metrics will improve.

Berkeley Research Group returns to the top five for the first time since 2020. It posted over 20 more disaggregated hearings than last year – 55 to 33 – but its standout figure is average value, with US$603 million – third best among firms in the top 10, behind only Compass Lexecon and The Brattle Group. Numerous sizeable investor-state cases in industries such as mining and telecoms contribute to the high number this year. It climbs two places as a result. Although four of its 14 WWL names are classed as Thought Leaders (a very healthy percentage), it has less of a WWL contingent than the firms around it in the table.

Last year’s number three, Kroll, is this year’s number five. The firm’s rise in 2021 was in part due to it opting to include its Blackrock Expert Services and Haberman Ilett businesses under the Kroll umbrella, and this decision continues to reap dividends. Its 73 disaggregated hearings are an improvement on last year’s already excellent figure of 66. However, its US$290 million average claim value is well down on the US$424 million of the year before. Kroll continues to be one of the best when it comes to its WWL contingent both in overall numbers (22 – only exceeded by FTI Consulting) and the number achieving Thought Leader status (three).

Six to 10

In this section:

  • Ankura makes a big jump;
  • there is another big riser from outside the top 10; and
  • two of last year’s top five drop down.

Ankura debuted in last year’s ranking at number 15, and it builds on that this year, getting to sixth place, making it the year’s highest climber. Its number of disaggregated hearings in 2021 (61) rose further (to 76); only construction-focused HKA and behemoth FTI Consulting do better. This was accompanied by higher average claim value, at US$352 million, than either FTI Consulting or Kroll above it. If it has a shortcoming relative to others in this part of the table it is in the WWL column, where it has 10 names (only ninth best) but only one of whom is graded a Thought Leader. This is low for a top 10 firm.

The Brattle Group is a regular in the top 10. It peaked at second in 2018 and is seventh now, a slight fall on last year. Its average claim value – US$1.378 billion – doesn’t deserve any slip; it is not only best in the field but more than double every other top 10 member. The high average value reflects The Brattle Group’s reputation for energy-related arbitration. It’s also a bit misleading. The figure is very skewed by a single monumental case on behalf of parties seeking US$32 billion from Malaysia for unpaid oil revenue (what’s more, they won! US$15 billion: see here for more). However, it has some more modest figures in the other columns. Its seven WWL names is lowest among the top 10 firms; ditto that only one of those gained Thought Leader status. But . . . again . . .  US$15billion! The firm is clearly doing something right.

HKA was eighth last time and is eighth again this year too. Its volume of hearings, at 93, was the second best in the table (and a sharp rise on 57 last year). It also has the highest number of WWL names, at 15, outside the top five, including two who’ve attained Thought Leader status. Its average claim value, at US$143 million (only 24th in that metric) and lower than a year ago (US$250 million average), held it back. Although the firm is known for construction, it’s far from a construction-only shop. Indeed, its highest-value work was in other fields, such as aviation and food logistics. If HKA’s average value improves as its volume has, it will shoot up the table next time.

Alvarez & Marsal returns to the top 10 after being 14th in 2021. It’s now ninth. It fell because others improved, and it seems to have risen because they’ve gotten worse again. The firm itself appears a model of consistency. Its disaggregated hearings increased slightly – from 26 to 28 – as did its average case value by around US$20 million (from US$272 million to US$294 million). It stands out, though, in this part of the table in the WWL column – with 11 names recognised, including two Thought Leaders. Alvarez’s work is also always impressive for its geographic spread and wide range of industries.

AlixPartners didn’t sustain its top five ranking from last year, falling from fourth to 10th. Its score for disaggregated hearings, at 30, and average claim value, US$357 million, both fell versus last year – although both remain above the average in the table. This is more a reflection of exceptional numbers in 2021 (51 disaggregated hearings with an average value of US$557 million). It too has a healthy eight names in the WWL, of whom one makes the Global Elite Thought Leader grade. It’s notable how few firms outside the top 10 have a Thought Leader, so Alix appears to belong.

11 to 15

In this section:

  • Accuracy and PwC both rise a couple of places
  • Charles River Associates drops out of the top 10; and
  • Deloitte climbs from 18th.

PwC improves two places this year, to land in at 11th, making it the best of the “Big Four”. The trend in its figures is in the other direction, though – this is the third consecutive year that both its volume and its value dropped (57 disaggregated hearings in 2020, 42 in 2021 and only 31 this year, and average value has gone from US$482 million (in 2020) to US$414 million (2021) and to US$303 million now. It looks as if PwC is travelling up only because others are travelling down faster – notably Grant Thornton and Charles River Associates – or being acquired by rivals (Versant Partners was acquired by Secretariat), creating a space above that shuffled everyone upwards. Still, the firm has a respectable nine WWL names and is a force to be reckoned with.

Charles River Associates drops from ninth to 12th place. Its position depends on the value of its cases rather than on the practice’s volume. Although the average value remains exceptionally high, at US$756 million, it’s down from US$1.097 billion a year ago, leading to the fall. That remains the fourth-highest value in the whole table (and one of the higher figures, as we mentioned, was distorted by a one-off “black swan” type of case). It’s so high because CRA works on so many billion-dollar cases, both investor-state and commercial, in an array of industries from transport to financial services. Volume-wise (19 disaggregated hearings) it is only mid-table, and the WWL team haven’t elected to include many CRA names yet in their list of the best (arguably they should, given the quality of the firm’s work). If it did better in that column, it would leap up the ranking.

Accuracy is ranked in 13th place this year. The firm was initially omitted from last year’s rankings due to a miscommunication, but we subsequently estimated it would have placed in approximately 15th, making this year’s ranking a slight improvement. It’s almost the anthesis of CRA, the firm immediately above it. Accuracy combines a low average value – comparatively – of US$141 million with high volume, for this part of the table – 60 disaggregated hearings this year (seventh best) – and a strong showing in WWL, with 12 individuals selected (also seventh).

Deloitte climbs four to 14th this year thanks in the main to more volume. Its disaggregated hearing number jumped from 47 to 59. Although its average claim value fell slightly, from US$165 million to US$152 million, because everyone’s averages this year were lower, Deloitte’s ranking in this metric actually improved. Its work is much more commercial arbitration than investor-state and it is not confined to energy and natural resources the way some practices seem to be. Its five WWL names is about par for this section of the table.

NERA Economic Consulting occupies the midway point in the rankings this year (15th of 29 firms) and also sits (almost) squarely in the middle in each of the ranking criteria – 14th for average value, 16th for disaggregated hearings and 14th in the WWL column. Its fall of three places, from 12th last year, is largely down to its lower average claim value, which dropped from US$662 million to US$300 million, although, as mentioned, the table as a whole is lower on this metric this year. Its disaggregated hearings score also fell – from 23 to 19. Although the numbers might have changed slightly, the fundamentals of the practice remain unchanged. It still has a strong contingent in the WWL list and it still has the same NERA strength in depth. For example, its 10 largest matters were handled by 10 different experts.

16 to 20

In this section:

  • Ernst & Young and Exponent stay roughly put;
  • Credibility International and Analysis Group make sizeable jumps; and
  • Stoneturn debuts.

Ernst & Young has been remarkably consistent, maintaining its 16th place from a year ago this year, having been 17th the year before. Average value of claim declined quite notably, from US$456 million to US$136 million, but this was offset by a rise in the volume columns, where it posted 35 disaggregated hearings, up from 20. On the reputational criteria, Ernst & Young is the only firm outside of the top 10 firms to have a member dubbed by WWL as a Thought Leader, and having six WWL names makes it the second-best-scoring firm outside the top 10, behind only Accuracy (which has 12).

Exponent remains in 17th place, the same spot at which it debuted last year. The firm performed well for volume – its 36 disaggregated hearings, up from 29 in 2021, is the 11th best in the rankings and is bettered only by two other non-top 10 firms. Its average claim value declined a bit, though, to US$167 million from US$201 million. It’s a testament to how strong the firm is that it sustains a mid-table finish without any WWL recognition, though whether this is a failing on the part of the firm or WWL, given Exponent’s range of work, is something of an open question.

Credibility International climbs seven places to arrive in the top 20 for the first time, landing in at 18th. Its volume is about the same as a year ago, growing from nine to 10 disaggregated hearings, but its average claim value has more than doubled to US$446 million (from US$198 million), making it the ninth-best firm in that category. That average flows from the firm’s following for both investor-state work and natural resources work. Sure enough, there’s a pair of billion-dollar natural resources cases among its recent hearings.

Stoneturn enters the rankings for the first time this year, at 19th place. Although it reported only three hearings to our research team, the value of those was high. The result is an average claim value of US$1.364 billion, second best of any firm (behind The Brattle Group). Then again, it’s easier to have a high average value when you have the second-lowest volume.

Analysis Group is a notable riser at 20th, having placed last in 2021 (the firm failed to supply sufficient info to rank it properly). Although the firm still failed to provide case values this year, it did better at providing other information such that GAR could fill in blanks on value through various forms of triangulation. That produced an average claim value of US$649 million, which was the sixth best in the table. Its 11 disaggregated hearings, however, came from five unique hearings, making it a highish-value/low-volume practice, and this is the section of the table where those land.

21 to 25

In this section:

  • two firms debut;
  • Global Financial Analytics sustains its position; and
  • Delta Consulting Group and Frontier Economics fall away . . . a bit.

Global Financial Analytics, the small shop with a name for ISDS work, is a rare thing this year: a non-mover. It was 21st last year and still is. It’s essentially a two-person show, so its volume is never very big, but the average claim value often is. This year, it is pretty huge at US$955 million. The volume is also gradually increasing (it was a one-man shop for a bit and now has two principals). Most of the work is ISDS and currently includes a manufacturing claim valued at multiple billions. Some of the other work isn’t far behind.

Mazars is a prominent debutant this year, at 22nd. The firm has a higher volume of items than most in this section of the table – its 16 unique hearings beats all four firms immediately above it and most below. Its average claim value of US$201 million, which factors in several billion-dollar cases, is also above a number of bigger names, such as Accuracy and Deloitte. The firm mainly handles commercial arbitration – there’s one ISDS matter in there – with real breadth in the industries covered – from chemicals and transport to hospitality. The firm has two members in the WWL list of experts: James Gilbey and Sandy Cowan.

Lighthouse Consulting Group also debuts this year, at 23rd. An average value of US$289 million is balanced by 14 disaggregated cases, which puts the firm in the top 20 for both criteria. Unfortunately, thus far, the WWL team have chosen not to feature anyone from it, holding its ranking back.

Delta Consulting Group is 24th, down two. Although its ranking has slipped, its year-on-year figures have mostly improved. Its volume scores are up – 18 disaggregated hearings versus 14 a year ago – and are extremely healthy for a firm outside the top 10.At 17, its unique hearings number is the same as for NERA Economic Consulting and Charles River Associates. The average claim value is quite low, at US$101 million, but this reflects the firm’s strong focus on construction disputes. Delta stands out in this part of the table in the WWL column too.

Frontier Economics lands at number 25 this year. Although it’s slipped over the past two years, in fact, the fundamentals look just as strong as previously. Three of its senior members have now testified more than 10 times, and the firm is starting to have a following among Central and Eastern European states for gas and similar energy work. Its disputes business has grown from its wider consulting work straddling competition and regulated industries.

As for this year’s figures, the firm had six unique hearings all in the energy sector. The average value has fallen, slightly, from US$362 million to US$291 million, but this is still better than many of the big names higher in the table – for example, Deloitte, HKA and Kroll. Two of the firm’s recent matters were billion-dollar hearings. If Frontier had a better score in the WWL column – and it probably should– it would jump straight up the table.

26 to 29

In this section:

  • some well-known firms appear, having fallen; and
  • low case volumes lead to low rankings.

Grant Thornton was all but in the top 10 last year but has now fallen back considerably to 26th. It sounds a little drastic but there’s a fairly simple reason: last year Grant Thornton had a US$20 billion government contract case among its hearings, which boosted its average case value (the firm was third in this criterion in 2021). As this case now falls outside of our research window, that figure has fallen by a factor of 10 (from US$1.3 billion to US$134 million). Its volume of hearings is also down (13 compared with 28 in 2021). There’s no reason to believe that this is anything other than a temporary blip in the artificial world of the Power Index. In the real world, the practice looks as strong as ever. It has members in the WWL list and is often seen in billion-dollar claims. If it wants to be higher in the table, though, this WWL score would need to improve. Without more “ballast” in that column, its ranking will be more susceptible than some to other variations in value or volume.

BDO falls to 27th place from 20th in 2021 and 12th in 2020. This appears in part to be the result of a failure of communication. The firm supplied information on only two hearings (compared with 10 last year), both featuring the highly respected Gervase MacGregor. Given how many members the firm has named in the WWL list, it seems likely that there was more to tell. The average case value of US$225 million is more than respectable.

Note: Although too late for inclusion, we did run a triangulation using this year’s GAR 100 dataset. We identified 12 further disaggregated hearings, resulting in a total of 14, with an overall average value of US$451 million. On the basis of this data, BDO would have ranked significantly higher in the Power Index, in approximately 15th place. In addition, the triangulation omitted one claim the firm appears to be working on with Baker McKenzie, valued at over US$18 billion, as we were unable to validate the data sufficiently. Had this case been included, the average value of the firm’s claims would have been US$2.195 billion, around 60% higher than any other firm, and would have resulted in a ranking in roughly 11th place.

AFRY Management Consulting debuted in last year’s rankings at 23rd. It was noteworthy then for an extremely high average claim value of US$1.346 billion. It’s fallen this year to 28th in part because it provided no cases falling within our research window. However, our invigilators were able to identify three hearings from the wider GAR 100 dataset, which covered a mix of construction and energy. These gave a far lower average value of US$159 million. AFRY itself is a sizeable entity whose core business is not international disputes. The company, which can trace its roots back to 1895 when it was an umbrella body for steam pipe inspectors, is a Swedish–Finnish design, engineering and infrastructure consultancy with 17,500 employees worldwide (AFRY is its name following a recent merger (a portmanteau of “AF” and “Pöyry”)).

AFRY began to offer expert witness services seriously around 2010. Since then, the firm has worked on some 60 commercial disputes, most in gas or power or with a bioindustry focus. Around 10 members of the firm now have testifying experience; a further 30 consultants cover disputes regularly. Because of its expertise in gas matters in particular, it often sees high-value work. With that sort of platform, if it sets its mind to it, it definitely has the raw ingredients to do very well in the Power Index.

Oxera Consulting LLP occupies the final spot in this year’s rankings. It was 19th last year thanks to an average claim value of US$532 million. That’s now US$98 million.

Still, the European regulated industry specialist with historic links to Oxford University has some impressive aspects. It works across more industries and types of dispute than is often the case – from finance to post-M&A to IP to telecoms. And it’s female led. Helen Jenkins and Min Shi are both regular WWL names.

And that’s the Power Index for 2022. One firm from 2021, Versant Partners, is omitted. As mentioned, it became part of Secretariat in August 2021. We expect them to submit joint figures from hereon.

Table 2 – Merits hearings versus reputational clout

As we did last year, we have collated the data for individual experts recommended in Who’s Who Legal: Arbitration’s rankings, and the smaller list of Thought Leaders (this year 32 out of 279 were chosen as Thought Leaders).

If the Power Index looked only at these reputational metrics, this would be the outcome.

Table 2

 

The highest climbers would be BDO (up 11 places), Grant Thornton (up nine), Delta Consulting Group and Oxera Consulting (up seven), and Accuracy (up six).

Conversely, Exponent (down eight), Analysis Group, Charles River Associates and The Brattle Group (all down five), and Credibility International (down four) would each fall by several places.

As before, this chart does not factor in the overall size of the firms or the percentage of a firm that achieved Thought Leader status.

WWL has a new ranking as part of its WWL Analytics platform that does track these metrics, among other criteria. For further information, please see here.

Tables 3a and 3b – Most cross-examinations

Here we answer the question: how often were each firm’s individuals cross-examined?

The results are presented in Table 3a as simple totals unlinked to any value of claim. This year we use disaggregated hearings – so, if four experts took part in the same hearing and each one was cross-examined, the firm gets a point for each of them.

Table 3a

 

The figures are broadly in line with the overall hearings total, as might be expected. But there are some differences from the Power Index ranking. Within the top 10, HKA would jump six places to second, Ankura three places to third, and Compass Lexecon and Secretariat would fall four places.

Table 3b shows the percentage of disaggregated hearings that included a cross-examination. If we rank by this, some of the big names are even further down, although nearly all are in excess of 85%.

Table 3b

 

Tables 4a and 4b Investor-state versus commercial work

Table 4a shows the breakdown of investor-state and commercial arbitration as a proportion of the total volume of cases.

If we were to rank the Power Index by the firms doing the most investor-state cases, the results would be:

1. Compass Lexecon (39)
2. The Brattle Group (31)
3. Secretariat (20)
4. FTI Consulting (19)
5. =Accuracy (14)
5. = Berkeley Research Group (14)

The big jumpers by this metric would be Credibility International (up 11 places), Accuracy (up eight) and The Brattle Group (up five).

Table 4a

 

Table 4b shows the list again ordered by the firms with the highest percentage of investor-state hearings, first, with a qualification of 20 disaggregated hearings and, second, with no qualification.

Table 4b

 

Four firms do more than 50% investor-state work: Global Financial Analytics, Credibility International, Compass Lexecon and The Brattle Group.

Does a higher percentage of investment treaty arbitration translate to Power Index success? It’s true that ISDS matters often start out as high value – which helps a lot in the average value column. In fact, though, the Power Index top 10 contains three of the 10 best and three of the 10 worst for percentages of investor-state cases. So it’s by no means clear cut that ISDS work is the secret recipe. That said, most firms in the top 10 do some, and it doesn’t take many to improve one’s average. More analysis is required on this one. Watch this space.

Table 5 – Energy, oil and gas work

Table 5 presents the number of energy-related hearings per practice, along with how many of those were oil and gas.

Table 5

 

The Brattle Group, second in this table last year, is now top. Forty-two of its 53 disaggregated hearings this year are energy related, but, almost uniquely in the Index, none were oil and gas.

We reported last year on The Brattle Group’s participation in a wave of renewables cases in Spain, and these figures appear to reflect the tail end of these cases. It remains to be seen whether The Brattle Group musters quite such a volume of matters next time around. It’s very respected for its work on energy markets, so anything’s possible. There could be a wave of matters relating to events in Ukraine.

Compass Lexecon and FTI Consulting are tied in second place with 23 disaggregated energy hearings each. Half of Compass Lexecon’s energy hearings were investor-state. FTI’s were mostly commercial (only six ISDS cases in its energy list). Only one of those commercial cases had any construction link, which might surprise a few people.

Frontier Economics (up 14) and Exponent (up eight) would see the biggest changes if the Power Index were reorganised this way. They’d be joint ninth and joint 11th, respectively. All of Exponent’s hearings were in the energy sector. Accuracy would also jump seven places from 13th to sixth.

Tables 6a and 6b – Construction

Table 6a

 

Construction disputes made up 28% of all hearings recorded this year. Table 6a focuses on those to the exclusion of all else.

If we were to rank by this metric, HKA (up six), Accuracy (up six), Ernst & Young (up nine) and Lighthouse Consulting Group (up 14) would most benefit.

Volume-wise, more construction cases were recorded this year than in either of the previous two years (329 compared with 314 in 2021 and 287 in 2020), but this doesn’t account for more firms taking part in 2022. If one tracks just the top five from this edition back, that group reported the same or fewer construction cases than a year ago.

Covid sits squarely in the middle of this year’s research period. We speculated last year that this might have affected construction disputes more than some other types of work. Either this hasn’t been borne out or clients grew tired of waiting and hearings went ahead after a while. It does appear that there’s less year-on-year growth in these figures – particularly when one factors in the larger number of firms taking part. So it appears that covid has had some effect.

There remains the same stark split between those firms that do lots of construction work and those that do little or none.

This can be seen when we look at percentage of construction work in each firm’s portfolio (Table 6b): 12 out of 29 firms do less than 5% construction work (including 10 who do none at all), and 11 firms do more than 33%, right up to Lighthouse Consulting Group, which had only one hearing this year that wasn’t construction.

Table 6b

 

Table 7 – The Power Index 2022 (excluding construction hearings)

Table 7

 

For the second year, we’ve redone the Power Index but excluding construction cases.

This is because, as noted, in ordinary times, construction work can produce a lot of hearings. There’s therefore a risk that firms that carry a lot of construction work are at an unfair advantage.

Last year, the first iteration of this table suggested that such concerns were not borne out. There were minor changes to the table.

The same is largely true again this year. The top four firms stay unchanged, with only Ankura and Kroll losing out in the top 10 – Kroll, however, does drop from fifth to ninth.

Deloitte, meanwhile, rises three places, whereas Exponent and Lighthouse Consulting Group both fall six. Most other firms move only slightly.

This year, construction cases made up US$53 billion out of the US$294 billion total value submitted – hardly a drop in the ocean, but only at 18%. Because the table also emphasises value, construction doesn’t unduly influence the overall table’s shape.

That’s the Power Index and other tables for this year.

We hope you enjoyed the report. Please do send us your thoughts, comments and suggestions for improvements to [email protected]

Words: Rupert Wilson and David Samuels.

Data and analysis: Thomas Last.

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