Are professional expert witnesses a “good thing”? Can those who make a living as a hired gun be, well, objective?
Counterintuitively, it seems the answer is “yes”. There is reasonable evidence those who testify regularly become more objective – ie, scrupulous about their positions – not less.
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, in other words he said.
Repeat-player experts are also a boon when building the case, he said. As 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 the exceptions – stories circulate of the apocryphal unscrupulous expert who takes diametrically opposed positions in different casezs, which is possible thanks to arbitration’s confidentiality (leading to discussions of how to police such behaviour). And the current system of party-experts is far from perfect. The level of discontent, particularly from arbitrators, about expert witnesses is definitely on the rise (captured in some helpful PWC research).
Even so, the consensus remains that party appointed experts are the best way to get at the truth and that giving evidence repeatedly appears to forge a better expert.
Of course, the expertise a tribunal would find useful is seldom confined to spreadsheets. There may be questions of industry practice. (More and more the spreadsheet part is now being viewed through an industry lens.) Is it helpful if those other types of experts are also repeat players?
It seems “yes” there too. Or at least that they are backed by an organisation that knows its way around the relevant process. Consider a dispute over a project to build and run a gas processing plant. The claimant might need three or four experts: an engineer or construction specialist to speak to project management; a chemist to speak to the quantity and quality of the gas extracted; 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 have all clocked many miles in arbitrations and the others are doing their first, what is the result?
In all probability, the side with ringcraft gets the upper hand. The scenario above isn’t in fact hypothetical; it is exactly what is alleged to have happened in one recent case, which produced one of the largest reported commercial arbitration awards – around US$9 billion owed by Nigeria, 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.”
It should be said Nigeria is contesting this award on the grounds that it was more the product of fraud than simply a mismatch of experts. The case is currently before the UK courts.
If “repeat” players are better, and you might require several different types, how can you be sure of finding the genuine article, rather than just those who talk a good game?
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 2020 to 1 August 2022.
We present our findings in a series of easier-to-navigate tables:
Table 1 is the GAR 100 Expert Witness Firms’ Power Index.
- 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 arranges expert witness firms in a similar way to law firms in the GAR 30: by balancing the volume and value of two years’ worth of hearings and factoring in score for the perceived quality of their personnel (perceived by peers).
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% 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 is 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 is 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 has not 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 2023 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: 14 improve, eight fall and four stay put.
In addition, we have:
- a new number one;
- a change in the top five;
- one new entrant (a familiar face);
- a smaller table, as three firms drop out; and
- a table in which average value was less of a separator, meaning volume scores mattered more than previously in deciding overall position.
One to five
In this section of the table we see:
- a new look to the order;
- FTI back on top;
- Compass Lexecon, Secretariat and Kroll all fall.
FTI Consulting regains the top slot, after ceding it to stablemate Compass Lexecon last year. Its average value per case was slightly up this year (from US$325 million to US$337 million), while Compass Lexecon’s fell (from US$662 million to US$604 million). But the spread in averages at the top of the table was less, so the differentiator this year became volume more than value. And it is there FTI really stood out. Its unique hearings score increased from 134 in 2022 to 159, and its disaggregated hearings from 155 to 185. Only HKA got even close to these scores (at 98 and 128 respectively).
So that explains the return. What’s more is FTI’s total claims value (the sum of all cases on which it is working in international arbitration) grew by US$10 billion in between editions to US$50.6 billion. So it would appear to have the fuel to sustain this level. The next highest figure in this column coincidentally is US$37 billion (Berkeley Research Group).
Berkeley Research Group rises two places, from fourth to second, meaning it now has gone up two years in a row (starting at sixth in 2021). BRG has always had strong value scores. It is in the volume columns that things have really changed. Its unique hearings went from 47 a year ago to 74 this time, and its disaggregated hearings number from 55 to 95. Those are double and nearly triple, respectively, its scores for 2021. Its total claim value is also up – from US$27.1 billion to US$37.4 billion – a 37% jump. It has also strengthened in the Who’s Who Legal (WWL) column – it now has 16 representatives (two up on last year); four of whom are Thought Leaders. This is the fourth highest score in the table. BRG’s increased hearings score was driven by construction, energy and telecoms work, of which much related to delay and force majeure.
Compass Lexecon, last year’s “winner” is now third. Although its volume is also up, its unique hearings have gone from 39 to 47, and its disaggregated hearings have increased from 62 to 77 – its average value declined (from US$662 million to US$603 million), which had a material effect. It is still one of the highest average values in the table though. So relative to itself, Compass Lexecon at least improved on last year.
Secretariat stays in the top five (after climbing from seventh in 2021), but falls from third to fourth. Superficially, at least, it showed the least development in percentage terms on the volume side, only increasing from 54 unique hearings to 62 this year. For Secretariat though that is a big change on the previous two years, when its numbers were largely static. That may reflect the absorption of Versant Partners, a firm that was once upon a time part of Navigant, and which has been in the top 10 in its own right, although the increase in hearing numbers is only around half of the Versant numbers from 2021.
Secretariat’s average claim value is US$582 million, which is the fifth highest in the table and its total value at stake – US$36.1 billion – is the third highest. It is also home to the second-largest population of WWL rated individuals (24), and second in the Thought Leaders’ column (Compass Lexecon has eight). So it has the ingredients for a far higher finish.
HKA is the biggest climber in this section. It jumps from eighth to fifth, helped by an increase in the average value of work. In fact, it recorded the highest percentage change of any firm near the top, here, although starting from a somewhat lower base than is usual in this section of the table. Its average claim value increased 94% from US$143 million to US$278.9 million (restoring it to the sort of level it was on in 2020). And more may be coming. HKA’s total claims value also soared since last edition – from US$ 9.7 billion to US$25.9 billion.
Simultaneously, it was also improving in the WWL column from 15 in 2022 to 21 today. What explains these positive shifts?
Well, HKA has been investing in itself extensively since around 2020, buying a series of businesses that share the same construction disputes DNA (construction in the broadest sense). It would appear that the fruit of those investments are showing up in the Power Index. What might that mean for its ranking going forward?
Hitherto, HKA’s position has been driven, it’s fair to say, by its out-performance versus everyone else on the volume side. It has been – and remains – the second busiest practice firm in the table in disaggregated hearings. If it further improves in the value metrics, it must at some point start challenging for a top three spot.
Six to 10
In this section of the table we see:
- two non-movers;
- two firms swapping places; and
- the arrival of one of last year’s top five.
Ankura stays steady at sixth. It has the equal-third highest number of disaggregated hearings in the table, behind only FTI and HKA. Indeed, its figures improved in every column from 68 unique hearings a year ago to 86 now, 76 disaggregated hearings to 95, and US$23.5 billion to US$32 billion for total value of claims.
With that in mind, it would be a surprise not to see it go higher. It is a little behind others in the WWL column – though there too it is improving fast. Its WWL score went from 10 to 15 since the last edition, and its Thought Leader score from one to two.
Ankura was primarily a US-focused consulting firm (founded in 2014), until 2018 when it bought Navigant’s international disputes network, which was big in construction, and its work reflects that tradition. We have noted in the past that Ankura’s a practice where we see more female names leading on work. That remains true, though the difference is no longer as stark as it once was. We speculated that the better gender balance may reflect the firm’s construction roots. Anecdotally, the world of construction is less male-dominated than some professional disciplines.
Alvarez & Marsal climbs two spots to number seven, representing a third straight year of improvement in the table (it was 14th in 2021 and ninth in 2022).
And it is another firm looking like it may continue that trend from hereon. This edition saw a sizeable increase in its number of hearings from 26 unique and 28 disaggregated to 40 and 55 respectively; average claim value (from US$294 million to US$512 million); and total claims value from US$7.6 billion to US$20.5 billion.
The jump in average value was fuelled, in particular, by a series of billion-dollar claims, where Alvarez was often assisting the state (including several matters for Germany). The increase in total claims value suggests these items aren’t one-offs, but there is still a mix of smaller stuff in this year’s hearings. This one could go either way…
Kroll, third in 2021 and fifth last year, slips to eighth. Its hearing numbers are only a little down on a year ago: 64 and 72 respectively versus 68 and 73 in 2022. Its average value of US$170.9 million though is the lowest in the top 10, and £100 million down on a year ago (US$290 million). Its total value of claims has also shrunk, apparently, from US$25 billion three years ago to US$10.6 billion. Our suspicion is that this change is more about the challenges of data collection in a new, much larger organisation than any material change in the overall size of the practice (there were some holes in the questionnaire). Kroll is an amalgam of a number of expert businesses – including the mighty Haberman Ilett, which was known for high-value work – and as the WWL numbers show it has got one of the higher-quality rosters of staff. A bounce back looks very possible.
The Brattle Group falls from seventh to ninth this year, but remains in the top 10, making it its fourth top 10 finish in a row. It does so in part on the strength of the highest average case value in the table – of more than US$1 billion. Although the Brattle Group often works on gas matters, which can have extremely high values (particularly in the current market), this year’s average case value is a little deceptive of its portfolio. It has been distorted by a single matter that started as a claim of US$32 billion (against Malaysia, over historical oil payments) and produced a mega award worth US$15 billion. Remove that and the Brattle Group’s key figure would fall a long way, and with it, probably, its ranking (the firm’s average value is down year-on-year incidentally, because now the award for the Sulu case is known, and we reprice the value in the table down from US$32 billion to US$15 billion accordingly). Will it still finish as high now the Malaysian case is off the books? It’s hard to tell. Its move this year reflects the change in known value of the Sulu case. Looking more broadly, it is difficult to read the direction of travel. Its portfolio value is down by US$10 billion but still at a level – US$24 million – commensurate with a top 10 finish. Meanwhile, gas prices have been at an all-time high and disputes are up. And hearing numbers overall are up year-on-year. But its WWL score remains low for this part of the table, and its average hearing value, Sulu aside, this year was modest. This is a ranking that could go either way.
AlixPartners rounds out the top 10 – just as last year. We remarked in previous editions that AlixPartners is always notable for the breadth of its work, and the observation continues to hold true. In contrast to some construction-heavy shops at the top, AlixPartners works across apparently almost every industry, from pharma and life-sciences to finance to hotels. That does mean, however, that it carries a lower volume of work – its number of hearings is one of the lowest in the top 10.
Value wise, though, it more than holds its own. It would be ranked at sixth if that were the sole criteria. It is notable that AlixPartners’ total value of claims number has just doubled too from US$7 billion last time to US$13 billion. With nine WWL members, including one Thought Leader, it wouldn’t take a big change in one of the other metrics to push Alix back up into the top five.
11 to 15
In this section we see:
- four of the same names as last year;
- but no Charles River Associates; and
- three of the big four are all next to each other.
Accuracy climbs two, to 11th from 13th, making it another firm that has now had three straight years of improvement. Accuracy was one of very few firms this year to improve versus itself in nearly every column. Unique hearings are up 20% – from 41 to 51 – and disaggregated have grown from 60 to 77, the fourth highest score in the table. The total value of its claims has nearly increased more than 40% (from US$5.8 billion to US$9.9 billion), while its average claim value has risen from US$141 million to US$199 million. The firm, which was formerly part of Arthur Andersen (making the middle of the Power Index look even more Big Four-Five dominated), has strongly improved its WWL score of late too – from four a few years ago to 13 now (one up on 2022).
NERA Economic Consulting also improved versus itself in nearly every column, and rose accordingly. It has bobbed around in mid-table of late – 11th in 2020, 12th in 2021, 15th in 2022. Now it is 12th again.
It fell last year largely because of a significant drop in its average claim value and, though not quite back to where it was, this value has rebounded, going from US$300 million to US$475 million this year. It is a similar picture with respect to its total claims value, which dropped sharply in 2021-2022 from nearly US$14 billion to just US$4.5 billion to now back to nearly US$10 billion. The firm has modestly increased its work volume too, handling 21 total hearings and 24 disaggregated hearings, up from 17 and 19, and also gained ground in WWL, where it now has six, not five total listings.
PwC falls two spots to 13th. It has slipped back in all non-reputational metrics. Its average claims value, in particular, has decreased from US$303 million to US$269 million, and its total claims value is down from US$8.1 billion to US$5.9 billion. This is the fourth or so year in which we have seen the value figures in particular dropping, although US$269 million, as an average, is still pretty healthy.
Ernst & Young meanwhile climbs two to 14th, its highest position in the Power Index. It has done so with quite similar figures to last year in most metrics, except the two on volume of hearings where it improved from 27 and 35 unique and disaggregated, respectively, to 37 and 45. Only Accuracy has a greater volume in this part of the table. Its total value of claims has also increased significantly from US$2 billion to US$3.3 billion but remains one of the lower totals for a firm in the middle order.
Deloitte falls one place to 15th. In fact, there was almost nothing between EY and Deloitte. Compared with itself a year ago, though, Deloitte fell back. It saw a marked decrease in volume and total claims value. In 2022, the firm posted 58 total hearings and 59 disaggregated hearings. Compared to 33 and 36 a year on, total claims value fell from US$7.1 billion to US$5 billion. That is still, it should be said, a very healthy portfolio.
It is notable too how all the firms in this section of the table are on similar WWL numbers (scoring between six and nine without any Thought Leaders in the mix). Deloitte, like NERA, scores a six.
16 to 20
In this section we see:
- greater homogeneity than a year ago;
- two climbs of five places or more; and
- this year’s biggest faller.
Exponent is a scientific and engineering consulting firm with a following among US corporates, particularly energy firms, and by extension something of a US focus to its disputes work. (It does have non-US offices – five – which mostly do construction.) It climbs one place this year to 16th.
Its disaggregated hearings score has been its strength in previous editions and remain so. It has one of the best scores in this metric outside the top 10. It also has one of the bigger mismatches between hearings and disaggregated hearings – showing the regard in which it is held by those loyal clients. Its scores in the value metrics have also improved this outing. Its average claim value rose from US$167 million to US$197 million, and its total claims value is now up nearly by a billion at US$4.1 billion. Everything is trending in the right direction, though the firm has yet to receive recognition in WWL. We have noted before that 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.
Charles River Associates, alas, is this year’s big faller – down five at 17th. Is this the product of some material change, or just how CRA tends to behave in the rather artificial setting of this ranking? More the second.
CRA was the year’s highest climber two years ago – jumping 13 places. The year before, it had been one of the edition’s big fallers. It jumps around because it is rather dependent on its average claim value for its final position. When its average claim value is up, it is up; when it’s not, it’s not. Sure enough, this is a year when, compared to a year ago, its average claim is lower. That average claim value, it should be said, is still a whopping US$426 million: that is, better than at least three firms in the top 10. It is simply not quite what it was or probably will be.
The firm continues to carry a greater total value of cases than many firms in the table, particularly in this section. Its ranking would of course be more stable if it traded better in our WWL research; its score of two doesn’t seem to do justice to the calibre of its client base or work. Without another leg to its ranking, CRA will tend to jump around in the ranking.
Credibility International was one of last year’s big climbers – going from 25th to 18th, where it remains this year. Its volume stats are lower than some around it, though improved on a year ago (from nine and 10 to 11 and 13). But it is in claims value where it really shines. Its average standing at US$630 million and its total at US$6.9 billion have both increased the past two editions. In fact, its average is greater than all but one firm in the Power Index: namely, the Brattle Group. The firm, formed in 2010, is a favourite of some of the US’s more eminent treaty-arbitration firms, particularly those who defend states and state entities, and it is its regular appearances on high-value ICSID work that lies behind those figures. Currently it is working for Poland, Peru and Mexico among other states. It is also, among the expert firms, impressively mixed when it comes who takes the lead: a man or a woman.
As is a common theme in this part of the table, it’s WWL scores doesn’t appear to reflect the quality of its work.
Grant Thornton goes from 26th to 19th this year, the biggest jump of any firm. A year ago, it was the table’s big faller, moving from 11th to 26th. But we noted at the time “there’s a fairly simple reason”: namely, the conclusion of a single US$20 billion government-related case. “What is not in doubt”, we observed “is Grant Thornton’s ability to attract high-value work”. Sure enough, since then its average and total claims values have doubled – from US$134 million and US$1.4 billion respectively to US$316 million and US$3.1 billion. The practice though remains slender in terms of volume, and for that reason it is in this area of the table. To appear higher, one of the other Grant Thornton metrics needs to start providing more ballast.
Delta Consulting Group climbs four places, largely on the strength of much better hearing number scores. It climbed from 17 and 18 unique and disaggregated hearings last year to 23 and 24 this year, which makes it the busiest practice in the bottom third of the table, and is almost the same as some of the firms in the middle 10. Its average case value fell in the process – from US$101 million to US$67 million. The firm has a heavy construction focus and this may explain the more modest case sizes.
21 to 25
In this section:
- BDO rises six places;
- Frontier Economics and AFRY Management Consulting improve; and
- Global Financial Analytics falls.
BDO climbs six places from 27th to 21st, making it one of the highest climbers this year. That said, it is a somewhat artificial statement as last year’s low ranking stemmed in part from incomplete data being provided. When we conducted an internal exercise to round it out, BDO finished closer to 15th than 27th. The 21st rank is a better reflection, although our researchers still think the firm may be short-changing itself when it comes to the value of its cases. It is working on a number of high-profile cases – including a series for the Kingdom of Spain, and for the sides who have been expanding the Panama Canal. It is noticeable that the law firms in question put in higher figures as “at stake” than BDO. Taking on their face value, BDO’s average claims value is just US$101 million, which is the third-lowest in the Power Index. The reality we suspect is that it is a decent amount more.
Mazars debuted in the rankings last year at 22nd, and remains at 22nd. Its unique and disaggregated hearings numbers are 16 and 19, but its value figures have fallen – slightly – from US$201 million to US$172 million for average hearing size, and from US$3.2 billion to US$2.7 billion for total claims.
Frontier Economics improves two places to 23rd. The firm’s fundamentals continue strengthen. 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.
In terms of this year’s table, a slight decrease in its volume scores – now four unique hearings and six disaggregated compared with six and eight last year – was offset by a big increase in average claims value – from US$291 million to US$354 million, which is the fifth-best score outside of the top 10. If Frontier had a better score in the WWL column – and it probably should, its work is consistent enough – it would jump up the table.
AFRY Management Consulting doubled its total value of claims from US$478 million to US$945 million, and saw its average claim value increase by a third: US$159 million to US$236 million. Not surprisingly, it goes up – rising four to 24th. Its volume of hearings grew too, though not quite as much.
AFRY is a sizeable consulting firm whose core business is not international disputes. The company, which can trace itself to 1895 and an umbrella body for steam pipe inspectors, is today a Swedish-Finnish design, engineering and infrastructure firm with 17,500 employees (AFRY is its name following a recent merger and is a portmanteau of “ÅF” and “Pöyry”).
We wrote last year that because of its expertise in gas matters “it often sees high-value work. With that sort of platform […]it definitely has the raw ingredients to do very well in the Power Index.” Given the changes in gas markets of late, we would expect to see more of it over the next few years. To date, around 10 members of the firm have testifying experience.
Global Financial Analytics, the small shop with a name for ISDS work, was a rare thing last year: a non-mover, in 21st. This year, with volume more important in the ranking, it falls – a bit – to 25th.
It remains essentially a two-person show, so its volume is never very big, but the average claim value can be. Last year, it was US$955 million. This year it is less at US$353 million, and the total claim value is too, by billions, suggesting that it may have some spare capacity – at least for a bit.
26 to 27
That leaves two firms in this year’s index.
The Claro Group makes a return after two years out. It was 19th in 2020; it rejoins in 26th. Its volume numbers are down on then, and the firm has been through some ownership changes around when we were collecting our research. In October 2022, it was bought by a private equity-backed company Stout (formerly Stout Risius Ross). This was preceded by the departure of some of its better-known names, at least in the world of international arbitration – in particular, Wayne Wilson (formerly of Alverez & Marsal) who dominated the Claro Group work reported in previous editions (he is now at Coherent Economics). These changes may explain the low hearing figures – two and two this edition. At the time of its acquisition, it was a 92-professional mixed disputes consulting practice, with a name in particular for insurance work. Casey Ballard, from Houston, is the firm member selected by the team at WWL. She focuses on energy, which suggests that the firm will continue to have the raw material to do well in the Power Index in future years.
Oxera Consulting sits at 27th. Even though it is still in the same position, it doubled its hearing score from two hearings to four; ditto its total claims value – now US$311 million (up from US$196 million). The European regulated industry specialist with historic links to the University of Oxford has some impressive aspects. It works across more industries and types of disputes than is often the case – from finance to post-M&A to IP to telecoms. And it is female led. Helen Jenkins and Min Shi are both regular WWL names.
And that’s this year’s Power Index.
Table 2 – the Power Index if it were redone purely on reputational clout
As in previous years, we have collated the data for individuals recommended in Who’s Who Legal: Arbitration’s rankings, and the smaller list of Thought Leaders. This year, collectively, firms in the Power Index accounted for 230 WWL listings, of which 35 were chosen as the top-level of Thought Leaders (we call these Global Elite Thought Leaders).
If the Power Index looked only at these reputation metrics, here is the result.
Ten firms would occupy lower positions than they do, though most of these only slip a couple of places. The exception is Exponent, which would fall 10 places.
The largest beneficiaries would be Kroll, BDO and Oxera, who would all rise four 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 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
Not every hearing results in the expert in question being cross-examined. Here we answer the question: which firm had its people on their feet facing cross-examination, most often?
The results are 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.
The figures are broadly in line with the overall hearings total. Of the Power Index’s top 10, 90% make it through to the top positions on Table 3a, though all but one of those (FTI Consulting) would find themselves in a different position, either a couple of spots up or down. Secretariat would be the biggest loser, dropping from fourth to eighth. Table 3a would have Accuracy as a top 10 firm, moving it from 11th to fifth, while AlixPartners would fall from 10th to 15th.
Table 3b shows the percentage of disaggregated hearings that included a cross-examination. This table completely shakes up the Power Index and, for example, brings AFRY Management Consulting from 24th to first, while demoting FTI Consulting to 17th. All but three firms, Deloitte, AlixPartners and Exponent, are at 90% or above.
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 hearings.
If we were to rank the Power Index by the firms doing the most investor-state cases, the results would be:
- The Brattle Group (41)
- Compass Lexecon (34)
- Berkeley Research Group (30)
- FTI Consulting (27)
- Secretariat (22)
By this metric, the top 10 would include all the same names as the Power Index top 10, though AlixPartners would slip out with just two investor-state cases and be replaced by Accuracy (20 investor-state cases; the sixth highest).
If the metric was most commercial cases, then Kroll in particular would move up.
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.
Does a higher percentage of investment treaty arbitration translate to Power Index success? It is true that ISDS matters often present, initially, as high value – which helps a lot in the average value column. However, of the four firms doing 50% or more investor-state work, only the Brattle Group (62%) finds itself in the top 10; Credibility International, Global Financial Analytics and Oxera undertake 54%, 50% and 50% investor-state work respectively, but their Power Index positions are 18th, 25th and 27th. Safe to say, ISDS work is no longer the secret recipe, if it ever was. The Power Index is as much about volume as value nowadays. That said, most firms in the top 10 do some, and it doesn’t take many to improve one’s average.
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.
The Brattle Group maintains its top-tier position this year, 50 of its 60 disaggregated hearings being energy related (though none in oil and gas). Last year, the firm’s tally of energy related hearings was 42, which included a wave of renewables cases in Spain. That the number has increased to 50 speaks to the firm’s reputation in grids and electricity.
Second place goes to Compass Lexecon: 38 of its 77 disaggregated hearings were energy related, 22 of which were in oil and gas. HKA’s third place – 22 energy hearings – suggests the worlds of construction and energy are more and more overlapping.
Tables 6a and 6b – construction
If we were to rank by this metric, Delta Consulting Group, Exponent and Ernst & Young would all find themselves in the top 10, climbing 10, nine and six places respectively. Last year, HKA was significantly behind FTI Consulting on this table, but this year they are both on 76.
The main thing this table does though is show the same stark split between firms that do lots of construction work and those that do none.
As Table 6b shows, 10 out of 27 firms seem to do very little construction work (5% or less of total hearings), of whom six do next to none. Meanwhile seven firms spent more than 30% of their hearing time on construction.
Table 7 – the Power Index 2023 (excluding construction hearings)
A few years ago, it was suggested to us we should remake the Power Index but “this time without including any construction”.
The thinking being that in ordinary times, construction work can produce a lot of hearings, which potentially swamps the other practices.
Table 7 does just that. It remakes the index without any construction. As on the two previous occasions we have done this, the results are subtle rather than dramatic. The main beneficiary is Compass Lexecon that hurdles Berkeley Research Group and replaces FTI at the top. Alvarez & Marsal and Brattle also finish higher, while Kroll and Ankura drop. The middle- and bottom-third of the table though remain unchanged.
That is 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]
As damages experts in international arbitration, Credibility International has regularly delivered the preferred opinion relied upon by tribunals. Since founding of Credibility in 2010, experts from the firm have regularly appeared in international arbitrations including over 50 investor-state cases. In 2021, Credibility published both its second edition of the study of damages in international arbitration which is the most comprehensive study of its type prepared to date https://www.credibilityinternational.com/wp-content/uploads/2021/02/Study-Damages-Awards-2.pdf and a supplement to that study including awards finding no jurisdiction https://www.credibilityinternational.com/wp-content/uploads/2021/11/Study-of-Damages-Supplement.pdf .
Credibility’s experts have dealt with operations around the world with a strong concentration of cases in Latin America, Europe and Central Asia. Credibility has significant industry expertise in energy, mining, infrastructure, financial services, manufacturing and telecommunication.
As a boutique firm, Credibility offers an incredibly experienced team whose team members have worked on a very large number of international arbitration cases. Our experience is concentrated in a small team whose work across multiple cases provides clients with better service and value.
Our testifying experts in international arbitration provide the range of testifying experience. Firm founder, Tim Hart, has been selected as expert in over 100 cases resulting in testimony in over 60 hearings during his thirty years since his first expert instruction including selection as expert in more than 40 investor-state cases. Rebecca Vélez, Laura Smith, Ken Kratovil and Mark Funk have all testified in international arbitrations.
Credibility’s track record as experts in international arbitration is world-class and the results as reported in awards support this claim.