New Zealand Law Society - Big role for NZ lawyers in international dispute resolution predicted

Big role for NZ lawyers in international dispute resolution predicted

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New Zealand lawyers can play a "really important role in international dispute resolution and, ultimately, world order," according to Wendy Miles QC. An expatriate New Zealander, Ms Miles is a partner and global head of arbitration at Boies, Schiller & Flexner in London.

"I hire more New Zealanders than any other foreign nationality," she says. "New Zealanders are so well qualified to be in the world of international dispute resolution because they are living all the legal issues."

Ms Miles lists a raft of New Zealanders who are already filling major roles in this field overseas. Just four of the names she lists are Audley Sheppard QC and Jason Fry, the co-global heads of international arbitration at Clifford Chance; Stephen Jagusch, the Global Chair of Quinn Emanuel's international arbitration practice; and James Hosking, who was a Clifford Chance partner before forming Chaffetz Lindsey LLP, a "phenomenally successful" boutique arbitration firm in New York.

Then there are a "whole bunch" of New Zealanders on various overseas and international courts, tribunals and other international conflict and dispute resolution bodies.

Well qualified

photo of Wendy Miles
Wendy Miles 

"The point is not so much about how well they're doing but how well qualified and ready the legal community is here to deal with the major international issues in the world today.

"'We punch above our weight' is an overused expression, but I think it is apt here."

Ms Miles puts this down to two main factors: the rigour of the law school training in New Zealand, which she describes as "extraordinary", and the quality of New Zealand's legal profession.

Also, "the way we operate in New Zealand, because it is so small, lawyers don't segment, they don't get siloed in the same way as, for example, in London.

"Because the legal community is so small and because high level dispute resolution lawyers need to be generalists, I think people here really have the breadth of expertise to deal with some of the biggest issues ahead.

"I hope to see more and more of New Zealanders in important global dispute resolution roles. I think AMINZ has a really important role to play in facilitating that and ensuring that New Zealand dispute resolution lawyers have the right mix of international knowledge, skills and contacts."

Cultural awareness

Another area where New Zealand can contribute is with raising awareness of cultural tolerance.

Lawyers in New Zealand have an understanding of Treaty of Waitangi principles and insight into cultural awareness. They have learned to understand and operate in a legal system that respects traditional land values and those principles permeable to the legal and justice systems.

Decades of Waitangi Tribunal jurisprudence has built up a whole body of law and practical experience around indigenous land rights, "and I really don't think that has been exported in a way that it could be and it should be".

"In international dispute resolution, different cultures do things in different ways and here in New Zealand we recognise that and appreciate that and have been dealing with it for some time.

"With increased trade, you have increased international contracts and consequently increased international dispute resolution. It is only going to grow in this region and I think there is a real opportunity for arbitration seated in New Zealand.

"An increased amount of business for lawyers generally and in dispute resolution will inevitably come on the back of TPP (Trans-Pacific Partnership).

"The corporate lawyers will obviously be at the forefront negotiating the deals, investments and contract initially. I expect that foreign counterparties will expect to see international commercial arbitration clauses in these contracts.

"The whole business of international disputes is changing around the world. I know it's touching here and it's just going to increase," Ms Miles says.

Climate change refugees

There are, Ms Miles says, "so many global issues that are right on New Zealand's doorstep.

"There's science, there's Antarctica, there's environmental issues and there are investment issues, all of which need a legal order and a legal framework. Climate change refugees are a major issue facing the international legal community.

"Kiribati is likely to be the first state that becomes uninhabitable. It is right in New Zealand's back yard.

"New Zealand has, I think, the know-how, the compassion and kindness and preparedness, and has proved this over the years. This country has historically had a humane and generous approach to refugees."

Ms Miles recalls when she was in law school in the 1980s and early 90s being involved in a Red Cross programme that was integrating the influx of Somali refugees into the community.

"I think New Zealanders are innovative, creative, brave and are capable of doing something that can set the standard for the way the world deals with the huge problem it faces with population movement as a direct consequence of climate change in coming decades," she says.

Interestingly, the only court case dealing with climate change refugees is the New Zealand case involving Kiribati. (This case went to the Supreme Court in Ioane Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107.)

"It is the only precedent so far. I was speaking with a former New Zealand judge in The Hague at the end of last year. We were discussing how International Convention on Refugees doesn't apply to climate change refugees, as there must be torture, persecution or similar. He suggested that if you go back to principles of customary international law, such as state necessity, you will be able to find a solution to climate change refugees imposing obligations on neighbouring states to accept them into their territory."

Ms Miles is involved in the implementation phase of the International Bar Association's report Achieving Justice and Human Rights in an Era of Climate Disruption (available at

The report makes a series of "very concretised recommendations on dealing with justice and human rights issues arising out of climate change," she says.

"It brings climate change problems into the awareness and the consciousness of lawyers beyond the environment law community.

"Environment lawyers have dealt with environment problems their whole careers, but it is an area of practice and expertise that has become somewhat siloed in different national systems and in international law.

"What this [report] does is marry justice and human rights issues with environment issues. Interestingly, it introduces a series of recommendations for corporates, as well as lawyers, governments, international arbitral institutions and other international bodies. So it intersects corporate and dispute resolution law, and international trade and investment and promotes full accountability and responsibility for climate change human rights issues."

Important for agriculture

Something else that "ought to be on the radar here in New Zealand, where obviously agriculture and dairying is huge" relates to the role of New Zealand's overseas investment and business and its effect on local indigenous populations as resources. One example where there are potential issues relates to the extraction and importation of phosphate, an important fertiliser.

Morocco and Western Sahara supply two thirds of the world's phosphate. Two New Zealand companies are number seven and number eight among the biggest exporters of phosphate from that region.

"Now Western Sahara has an ICJ [International Court of Justice] opinion for independence. For the New Zealand companies buying phosphate off Morocco from Western Sahara territory, there's a very real possibility that they might find themselves in the position that the oil companies which were buying oil from Southern Sudanese territory but paying Sudan 10 years ago are finding themselves in now. When Southern Sudan became an independent state, it said: 'well we don't need to recognise that petroleum licence, because you bought it from somebody else'.

"We think of the agricultural industries as net exporters, but there is a huge import element … bringing in the fertiliser and other things.

"I think there are a lot of intersects between different world order issues, different conflict issues, that are only going to heat up with climate change and increasing human rights issues and that intersect directly with our industries here," Ms Miles says.


Another upcoming issue is around resource management and sustainability.

"I hope New Zealand will start to look again at its Resource Management Act and think hard about the unprecedented approach this country had towards sustainability in 1991, then unheard of anywhere else in the world. I hope it will not rest on its laurels about this but seize the opportunity to be a standard bearer in one of the defining issues of our generation. Perhaps it will extend the principles of the Act to the conduct of its citizens wherever they invest in the world.

"New Zealand has guts. It stands up for things that are not necessarily commercially appealing or diplomatically popular, such as becoming a nuclear free zone in the face of strong US and French opposition. Now someone really has to stand up for climate change and sustainability. New Zealand has enough of a reputation and role in the international community to start to lead by example. If it has the foresight and courage to make some difficult policy decisions as to the management of sustainability and climate change issues starting within its own territory – as I believe it did with the 1991 Resource Management Act – New Zealand could lead the way in preserving lands and resources for future generations globally. Independently, it could set a global precedent in respect of assisting one's neighbours where it is already too late, such as Kiribati," she says.

A high profile international arbitrator, Ms Miles is currently a Vice-President of the International Chamber of Commerce's Court of Arbitration. She is a representative on a number of professional bodies, including the ICC Commission on Arbitration and ADR. Ms Miles was in Wellington in July as a keynote speaker at the annual AMINZ national conference. She attended the conference with support from the New Zealand Law Foundation.

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