At the 2025 Ciarb Roebuck lecture, Sir Robin Knowles explored the growing scale of arbitral awards and their impact on businesses, governments, and the integrity of the arbitration process. He challenged the dispute resolution community to reflect on its responsibilities and called for greater clarity and accountability.
In this article, we look at how we can better balance efficiency, fairness, and public trust in the arbitration process.
Correctness Matters – and So Does Fairness
Sir Robin Knowles opened by emphasising that “correctness in decision-making is not an abstract virtue; it is critical to the fairness and legitimacy of the arbitration process.” While there must be room for pragmatic efficiency in time and cost, that efficiency must never come at the expense of fairness.”
The consequences of errors in assessing damages, especially in major investor-state or commercial arbitrations, are profound. Inaccuracies can translate into vast, unsustainable awards, undermining confidence in arbitration and weakening its reputation as a trusted dispute resolution method.
P&ID v Nigeria: A Stark Example
The P&ID case1 is illustrative of the dangers that can arise when key components of the dispute resolution process fail. The tribunal ultimately awarded US$6.6 billion2 in damages, a sum equivalent to multiple years of Nigeria’s health and education budgets, and nearly one-quarter of its national reserves.
- The case arose from a failed gas supply and processing contract.
- Neither party performed: P&ID did not build the facility; Nigeria did not supply gas.
- Despite non-performance on both sides, the tribunal concluded that had the contract been performed, P&ID would have made long-term profits over 20 years.
- Damages were assessed on a once-and-for-all basis, based on expert projections of profits that would have been earned.
- The original claim (US$1.9 billion) grew substantially through evolving expert evidence and revised valuations.
Sir Robin noted with concern how this escalation in figures reflects issues in expert handling, legal presentation, and tribunal evaluation.
Expert Evidence: Where Did It Go Wrong?
Several procedural and substantive failings emerged on Nigeria’s part:
- Late appointment: Nigeria’s expert had limited time to prepare a written report.
- Incomplete evidence: The expert was not shown the crucial factual evidence from Mr. Quinn, undermining their analysis.
- Omissions in scope: Key points raised by Nigeria (e.g., security costs, long-term policy risks) were absent from the expert’s report.
- Advocacy disconnect: Nigeria’s lead counsel at the quantum hearing did not appear to understand the arguments being advanced.
These deficiencies, recorded by the tribunal, raised doubts about competence, both in legal and expert roles. In contrast, the tribunal relied on P&ID’s expert who provided a detailed, reasoned report, with clear assumptions and valuation rationale.
Sir Robin expressed concern that the tribunal, faced with such asymmetry in expert quality, did not investigate further or enquire more actively. This, he suggested, was a missed opportunity.
What Should Tribunals and Experts Do Differently?
Sir Robin posed a series of reflective, practical questions for future arbitrations:
- Should tribunals require experts to revisit their reports if they lack essential factual evidence?
- Should tribunals invite parties to clarify unargued points?
- Should tribunals consider appointing their own experts in cases of technical imbalance or breakdown in party-appointed evidence?
- Should tribunals spend time with experts in advance, to ensure clarity on assumptions, scope, and joint statements?
These are not signs of partiality, but of responsible adjudication, particularly in high-stakes cases. Drawing from civil law traditions, he argued that proactive tribunal engagement is not inconsistent with neutrality.
Beyond the P&ID Case: Broader Lessons for Arbitration
The problem is not just individual failings, it is systemic. In international arbitration:
- Experts come from different jurisdictions and may have conflicting training or understandings of their role.
- Existing protocols and best practice guidance (such as IBA Rules and Ciarb guidelines) are helpful but too general in some circumstances.
- Unclear or differing expectations around expert conduct and tribunal interaction contribute to uncertainty and inconsistency.
Sir Robin called for a rethinking of how experts are used, managed, and understood within the arbitration process.
The Rule of Law and Public Interest
He urged the arbitration community to reflect on how vast, uncertain awards are damaging credibility. While the New York Convention3 is critical, it must not over-dominate the relationship between courts and arbitration. He stressed the importance of moving beyond jurisdictional pride and marketing to foster an integrated system of dispute resolution, one that includes litigation, arbitration, and mediation, working together in service of the rule of law.
A Call to Action: Collective Responsibility
Referencing initiatives like SIFoCC (Standing International Forum of Commercial Courts)4 and Ciarb’s engagement in Africa, Sir Robin ended with a clear call to action:
“Vast awards and their consequences are now a reality. But uncertainty surrounding these awards can, and must, be a catalyst for improving how we resolve disputes. We all have a role to play in making this better.”
He encouraged institutions, practitioners, experts, and users alike to collaborate, share ideas, and contribute to building a system of justice that upholds the public interest, ensures correctness, and fosters confidence, not just for today, but for a future increasingly shaped by climate change, AI, and global economic volatility.
Our Thoughts
Based on Sir Robin Knowles’ reflections, particularly the failings of expert evidence in the P&ID case, one can frame targeted, professional, yet critical questions that expose incompetence, negligence, or blind advocacy by a quantum expert. These questions should test whether the expert:
- Understood their role.
- Acted with independence.
- Engaged with the factual matrix.
- Provided a reasoned and defensible opinion.
The key components that an expert needs to understand are:
- Foundational competence: whether all relevant factual evidence has been tested, basis of valuations, quantification of loss, and if any hypothetical damages valuations are done, on what basis.
- Assumptions and objectivity: reasonableness of the figures provided by the instructed party, benchmarking or profit margins, cost estimates, risk contingencies considering the global price volatility, security, and climate change risks.
- Methodology and disclosure: alternative scenarios, assertion, and maintenance of independence outside of the instructing party’s control.
- Engagement and communication: allowance of sufficient time to carry out the required expert analysis, quality, and completeness.
- Professionalism and ethics: duty to the tribunal, reasoned analysis, advocacy, and independent report as per internationally recognised guidelines.
A question that I asked Sir Robin during the Q&A session was drawing a sharp contrast between two of the most significant arbitration cases involving sovereign states, P&ID v Nigeria and Riko Diq v Pakistan5, both involving multi-billion-dollar awards, but with very different outcomes in UK courts.6
The P&ID award was ultimately set aside by the English Commercial Court, whereas in contrast, the Reko Diq award against Pakistan, despite being of a similar scale, was upheld. I am still baffled and confused about the difference in judicial approach between these two cases. Was it simply a matter of procedural conduct and evidence of fraud in P&ID, or does it suggest a broader shift in how UK courts are engaging with investor-state arbitral awards?
The above questions reflect on:
- The serious procedural irregularities and findings of fraud and perjury that underpinned the P&ID decision.
- The more orthodox investment treaty arbitration process followed in Reko Diq, even if controversial.
- The limits and expectations of court supervision under the Arbitration Act and the New York Convention.
References
- Process & Industrial Developments Limited v The Federal Republic of Nigeria, EWCA Civ 790 ↩︎
- The initial arbitration award was for US$6.6 billion, plus interest accruing at 7%. However, this award was later challenged and ultimately set aside by the English High Court due to fraud and conduct contrary to public policy. The total amount owed, including interest, had reached $11 billion by the time of the High Court’s ruling. ↩︎
- United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) ↩︎
- https://sifocc.org/ ↩︎
- Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan, ICSID Case No. ARB/12/1 ↩︎
- Province of Balochistan v Tethyan Copper Company Pty Ltd EWHC 938 available at https://www.judiciary.uk/wp-content/uploads/2020/04/Final-judgment-Province-of-Balochistan.pdf ↩︎