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Experienced arbitration lawyers aiming to make New Zealand a Pacific arbitration hub

30 August 2019 - By Nick Butcher

Some experienced New Zealand lawyers who’ve worked overseas in arbitration have returned home for the Kiwi lifestyle and to help create more opportunities for international work now available here.

Coming back to the green pastures and, perhaps, the simpler life of New Zealand is not an easy decision to make – especially if you’ve had opportunities to work on major arbitrations in places like Paris and London.

So, what next in a career that has seen many globetrotting and practising international law?

Keen to grow New Zealand’s reputation

Lauren Lindsay is a barrister at Auckland’s Bankside Chambers with extensive experience as an international arbitration lawyer. She is able to practise law in both New Zealand and England and Wales.

Ms Lindsay finds it’s not easy to maintain an international arbitration practice in New Zealand.

Lauren Lindsay
Lauren Lindsay

“It’s particularly challenging as an advocate. There are obviously some well-known arbitration lawyers in New Zealand, but they’re probably not practising as much international arbitration as they’d like to. I think there is a lot of potential here but there are still relatively few international arbitration disputes being decided in New Zealand, or involving New Zealand-based counsel,” she says.

New Zealand has been listed as one of 32 seats around the world considered safe and reliable for arbitration by independent arbitration institute Delos Dispute Resolution.

Ms Lindsay continues her work as an independent consultant for Allen & Overy LLP’s international arbitration team in London.

“I also work with the A&O Hong Kong office. My practice is probably 50% international arbitration and 50% commercial litigation. Because of the time differences, we are really well placed to do work in Asia. So, whether it’s China, Singapore or Hong Kong, I’m much more convenient here than somebody in London.”

She says New Zealand is in a great position to grow towards being an arbitration centre for both Pacific neighbours and Asia.

“Especially the Pacific where there are a lot of disputes. Vanuatu, where I grew up, has its fair share. There are financial disputes, maritime and shipping disputes,” she says.

Earlier in her career, Ms Lindsay represented Poland in her first big international arbitration hearing.

“Acting for a state is quite a unique experience. Servier – a French pharmaceutical company – sued Poland for preventing some of Servier’s drugs from being sold in the Polish market. It was one of the first investment treaty cases concerning intellectual property rights and the subject matter was very scientific. The hearing was held in the Peace Palace at The Hague, so being a public international lawyer at heart that was very special.”

Perhaps New Zealanders practising law abroad are not as aware as they should be of how credible their skills and expertise are, or maybe they’re a little too modest.

Lauren Lindsay says perhaps Kiwis might not always appreciate the closeness of their connection to Asia.

“I’m very much from the Pacific: born in New Zealand and growing up in Vanuatu. The Pacific is such a big part of us. Even though Asia is halfway between New Zealand and Europe, when you are in New Zealand, Asia somehow feels closer than it did when I was in London. We’re much more connected here in New Zealand to both the Pacific and Asia,” she says.

The pull of family

Robert Kirkness is a barrister at Thorndon Chambers in Wellington. He’s an experienced arbitration lawyer and a Registered Foreign Lawyer at the Singapore International Commercial Court.

He spent considerable time overseas but New Zealand is where he wants to be.

Robert Kirkness
Robert Kirkness

“Like a lot of New Zealanders overseas, as soon as my wife and I had our first child, we were faced with a choice about whether we would stay or come home. The pull of family and the New Zealand lifestyle drew us back. The interesting question for me in terms of my practice is whether I can build a New Zealand practice but also maintain the international practice that I had before returning,” he says.

Mr Kirkness spent four years in Paris and four years in Singapore practising in the international arbitration and public international law teams at Freshfields Bruckhaus Deringer.

“Not many of the cases or clients were ever from the city that I happened to be living in so there was a lot of travel involved. As long as you are happy to jump on a plane and be where you need to be, there is no absolute need to be based in one particular place in order to do international arbitration,” he says.

So, can he maintain a similar set up being based in New Zealand? After all, it’s about a 13-hour flight to Singapore.

“You might not be that fresh when you get there but I think that’s part of the cost of the New Zealand lifestyle. You accept that there will be a lot of travel if you are going to make an international arbitration practice work.”

Practising before a mentor

Robert Kirkness studied international arbitration under Sir David Williams QC, who is considered one of the world’s leading arbitrators.

“Shortly before I came back to New Zealand, I argued an investment treaty case before Sir David. I represented an Asian State. The claim was brought by someone as a national of a European State. The hearing was in Paris. The seat of arbitration was London. Our legal team were all based in Singapore. The lawyers on the other side were from Houston, Texas. We mused a bit once the case had wrapped up about what an interesting field – international arbitration – we had got ourselves into,” he says.

The Peace Pipeline case

One of the more interesting cases Mr Kirkness worked on were the so-called “Peace Pipeline arbitrations”: four parallel cases – two investment treaty and two commercial that various foreign investors brought against Egypt and some of its state-owned entities alleging wrongful termination of a long-term contract for the sale of Egyptian natural gas to a private company for on-sale to Israel.

“One of my main memories from those cases was that in the international treaty cases, the termination of the underlying contract was a matter of fact that informed whether the international standards had been breached. That underlying contract was governed by English law, so the lawyers from the other side instructed an expert witness on the meaning of that contract as a matter of English law. They retained Lord Hoffmann, to do that. So, we, as a team, had the privilege of cross-examining Lord Hoffmann on the interpretation of contracts under English law, not once, but twice,” he says.

NZ can become big player in the Pacific

Royden Hindle is an arbitrator, mediator and barrister, and the President of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ).

Royden Hindle
Royden Hindle

He believes that while Singapore and Hong Kong are world champions when it comes to the global arbitration market, their focus there means that there’s plenty of opportunities at a regional level for other nations.

“It’s obvious that we [New Zealand] are geographically isolated. I suspect we might struggle to develop enough critical mass to become recognised as a truly global arbitration centre, certainly in the short-term. The picture is also complicated because Singapore and Hong Kong look to have that (global] market reasonably well secured. But in the Asia-Pacific region, it is a very different picture. I have no doubt that we can, and will, develop a far greater presence in cross-border arbitration,” he says.

Mr Hindle, who is based at Bankside Chambers, says New Zealand arbitrators have an excellent overseas reputation.

“We already have a presence on the world stage that is disproportionate to the size of our legal workforce. There are many very high-profile arbitrators practising abroad who call New Zealand home, as well as an increasing number such as Sir David Williams QC who live in New Zealand and yet are in huge demand overseas.”

Isolation no barrier

The executive director of the New Zealand International Arbitration Centre (NZIAC), Catherine Green, doesn’t think New Zealand’s isolation works against it in pursuing a larger arbitration identity.

Catherine Green
Catherine Green

“That tyranny of distance argument has been voiced numerous times in the past. However, there is a project called The Southern Link which places New Zealand in a very good position,” she says.

The Southern Link, she says, proposes the development of trade and travel routes between China and South America, and New Zealand is right in the middle of that plan.

“We can play quite a key role in the trans-Pacific region to link those countries. They can’t go from one to the other without touching down somewhere and that touchdown point could logically be us. Wherever there’s trade, there’s going to be disputes, so having effective dispute resolution processes that can underpin that is really necessary. We can definitely play a role throughout the trans-Pacific region, not just because of The Southern Link project but also on a general level too as there is plenty of other trade going on around this region.”

Ms Green says the NZIAC receives regular inquiries from throughout the Pacific with the view of utilising New Zealand for dispute resolution.

Moving back home after eight years

Nicola Swan is heading home to New Zealand after eight years in the UK – most of them at Debevoise & Plimpton LLP in London – in order to expand the international arbitration work coming in, particularly from Singapore and Hong Kong.

Nicola Swan
Nicola Swan

“I’ve been International Counsel in the International Disputes Group, where I’ve been working on international commercial and investor state arbitration, commercial litigation, public and administrative law across various jurisdictions, and international and domestic human rights law,” she says.

Ms Swan is joining Chapman Tripp’s Dispute Resolution team in Wellington to continue arbitration and litigation work, and to join and expand the firm’s international arbitration practice, which has a sought-after Global Arbitration Review top 100 ranking.

“New Zealand will be my home base, with a focus on expanding the international work coming through New Zealand, particularly through Singapore and Hong Kong,” she says.

Reflecting on a memorable case

One of the arbitration cases she is proud of was a case Debevoise & Plimpton LLP won before the Caribbean Court of Justice on an appeal from the national courts of Belize. It involved the availability of anti-arbitration injunctions – that is when national courts can stop an international arbitration from proceeding.

“The CCJ granted our client’s appeal from the decision of the Court of Appeal of Belize, discharging an anti-arbitration injunction which had prevented it from pursuing its legitimate arbitration against the Government of Belize. The CCJ confirmed that it was only in exceptional circumstances that international arbitrations can be halted by national courts.” The decision was recognised as the most important published decision in 2013 by Global Arbitration Review, she says.

Ranking high on transparency index

New Zealand is what could be described as an emerging player in arbitration. It has the potential to be a leader.

“We’re not established the same as Singapore or Hong Kong. What we’re saying is, we’re here, we’re open for business and we’re a good option as a location,” Catherine Green says.

There are many reasons for this, including that New Zealand ranks so high on the Transparency International Index – at number two out of 180 countries, behind Denmark. But in the Asia-Pacific region, New Zealand is number one.

“People look to New Zealand because it ranks so highly which is so important for dispute resolution. We also have a very safe legal system and supportive environment. You need this to support arbitration,” she says.

While New Zealand does possess arbitrators with powerful international reputations, Ms Green says there are also many lawyers who are advocates in arbitration.

“We really can provide the full package here. It’s not just a solo arbitrator with international experience. We’ve got very sophisticated lawyers who have been working in this area for a long time who are on the ground. And, while we can administer an arbitration from New Zealand, it doesn’t necessarily mean that we must have a New Zealander as the arbitrator.”

Recently, the NZIAC signed a memorandum of understanding with Argentina’s Chamber of Commerce. That organisation was specifically looking for a relationship that would support them in providing private dispute resolution through arbitration or mediation services.

“That’s indicative of what’s happening at the moment. People are looking for alternatives. They came to us. It was not an opportunity that we sought. The New Zealand profile is on the rise which is really encouraging,” she says.

The potential economic benefits

More arbitrations are likely to provide economic spinoffs for New Zealand. After all, people need accommodation and it is likely they might want to see some of this country while they’re here on business.

In 2012, “Arbitration in Toronto: An Economic Study”, by Charles River Associates was published. It analysed the impact of 425 arbitrations carried out in Canada that year.

It found domestic arbitrations brought CA$370,000 into the Canadian economy and international arbitrations CA$1.7 million. Respectively, that is NZ$430,000 and NZ$1.9 million – providing some insight into what could be achieved in New Zealand.

Last updated on the 30th August 2019