Practical Tips for Conducting International Arbitrations Deepankar Sanwalka July 2011

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. 1 Agenda Resolving User Dilemma 1 1 Effective Dispute Resolution 2 2 Expert Witness – ‘Opinion Matters’ 3 3

Resolving User Dilemma 2

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. 3 Resolving User Dilemma – Why Arbitration? Resolving User Dilemma

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. 4 Resolving User Dilemma (contd.) Resolving User Dilemma  Neutral, speedy and expert disputeresolution process  Single centralized forum, choice ofsole or presiding arbitrator

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. 5 Resolving User Dilemma (contd.) Resolving User Dilemma  Less expensive and timeconsuming than fully litigated cases  Use of “best practices” in areassuch as the taking of evidence,disclosure

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. 6 Resolving User Dilemma (contd.) Resolving User Dilemma  The arbitration award is final andlimited right of appeal to the courts  Arbitrator decisions are legallybinding thus avoiding additionalcost of parties going to the court

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. 7 Resolving User Dilemma (contd.) Resolving User Dilemma  Arbitration proceedings are not apublic hearing  Process is less adversarial thanlitigation which helps to maintainbusiness relationships between theparties

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. 8 Disputes – Not just a Question of Law Commercial & Industrial Activity Agreements & Contracts Mergers, Acquisitions & related Transactions Buying, Selling, Leasing, Borrowing, Lending or Investing A situation where facts, people and organisations do not agree, or where financial or other business related behaviour may not comply with expectations. What & How Why & Who Accounting/ Commercial Issues Legal Issues Legal Team + Effective Dispute Resolution = Expert Witness

Effective Dispute Resolution 9

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. 10 Structured Approach for Dispute Resolution Identification of key issues Knowledge of court procedures & evidence Presentation of information & expert witness assistance Interpretation of information Data management for discovery process Unique Skill Sets Blend of forensic accountants, lawyers & personnel with law enforcement background A Forensic mindset Accounting issues have to be approached in a manner consistent with the expectations of a court of law. Experience in international arbitration and dispute resolution. Leveraging Technology Use of forensic data analysis tools to sift through millions of lines of data to determine key accounting issues & backup assertions in plaints or contentions.

Expert Witness – ‘Opinion Matters’

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. Ensure the evidence is correctly understood When - Expert Witness ? 12 Key areas of the case are to be covered by expert evidence

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. Why - Expert Witness ? 13 Expert witness, particularly accountants advising on quantum, can add value to settlement negotiations. Expert witness, particularly accountants advising on quantum, can add value to settlement negotiations. This could involve analysing  Nature of the claim and identifying those areas where it can be improved  Aspects which will be vulnerable to evidence provided by the other party EXPERT FORENSIC SKILLSET

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. 14 How Expert Witness can be Beneficial? Outside of fraud, financial disputes that require complex quantification modelling or ‘what if’ calculations are those in which experts will be most beneficial. Such experts would be best used providing a critical assessment of the facts and assumptions underlying the loss as well as the quantification itself In relation to forensic accounting, it is those cases where the issue of quantum is most difficult to resolve and where the calculation of the amounts of damages may be very complex F-Tech Capabilities:  Data Analysis  Digital Data Recovery  Electronic Data Recovery

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. Independence – The Key Criteria 15  Whilst the parties to the dispute are essential to the factual background and impacts on the business, it’s not unusual for them to become emotionally involved in the proceedings.  Equally, the advice of their incumbent accountants or tax advisers can be tainted by the importance to them of focusing always on doing their best to support their client  Whilst the parties to the dispute are essential to the factual background and impacts on the business, it’s not unusual for them to become emotionally involved in the proceedings.  Equally, the advice of their incumbent accountants or tax advisers can be tainted by the importance to them of focusing always on doing their best to support their client

© 2011 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. ?

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