Independent Case Assessment in International Arbitration: A Practical Guide

An independent case assessment is not a case review.

The distinction matters.

A case review asks: how strong is our position? It is conducted by people who built the position, and it tends to confirm it. That is not a criticism. It is what a review does.

An independent case assessment asks a different question: what is the realistic probability of success, and what is the realistic range of outcomes if we succeed? It is conducted by someone with no investment in the answer.

The independence is not incidental. It is the point.

What does an independent case assessment cover?

Liability. Not a restatement of the claimant's theory, but an adversarial analysis of it. Where are the weakest links in the chain of causation? What is the best argument on the other side, made properly? What does the documentary record actually support, as distinct from what the witnesses say it supports?

Damages. This is where assessments most often reveal something useful. Damages theories developed inside a case team tend to be optimistic. The assumptions buried in an expert model — the discount rate, the counterfactual, the mitigation analysis — are often more contestable than the team has acknowledged. An independent assessment identifies the assumptions that will not survive cross-examination.

Arbitrator risk. How is this tribunal likely to approach the specific issues in dispute? Does the arbitrator's known reasoning pattern favor the theory being advanced? Are there procedural tendencies — on expert evidence, on document production, on the weight given to witness testimony — that affect the strategy?

Procedural risk. What can go wrong between now and the award? Jurisdictional challenges. Bifurcation. Adverse procedural rulings. The assessment should identify the procedural vulnerabilities and their likely consequences.

Settlement range. What is the case worth today — not at the optimistic end of the damages model, but as a probability-weighted expected value after adjusting for all of the above? This is the number that should inform any settlement discussion. It is rarely the number that counsel presents.

How should an ICA engagement be structured?

Scope and timing are the two variables that matter most. An assessment conducted before the pleadings are filed has different value than one conducted before the hearing. The earlier assessment can influence strategy. The later one can influence settlement.

The deliverable should be written. Not a presentation, not a conversation — a document that states the conclusions plainly, including the adverse ones. The value of an independent assessment is precisely that it says what the case team cannot comfortably say. A deliverable that softens the conclusions to protect the relationship has missed the point.

Confidentiality is standard. The assessment does not appear in the proceedings. The advisor does not become a witness. The engagement is structured to preserve privilege where applicable.

Who commissions an independent case assessment?

Sometimes the client, when it wants a view of the case that is not filtered through the relationship with counsel. Sometimes counsel itself, when it wants external pressure testing before a major decision. Sometimes a board or audit committee, when it needs to understand the real risk profile of a dispute it is carrying on its balance sheet — not the range counsel has presented, but the range an independent analyst would assign.

The ICA is not a vote of no confidence in counsel.

It is a recognition that the people closest to a case are structurally the least positioned to assess it.

That is not a flaw in the system. It is how the system works.

The question is whether you want to know before the award, or after.