MALCOLM HOLMES QC. International Arbitrations;

Transcription

1 MALCOLM HOLMES QC Malcolm Holmes QC is a senior counsel and chartered arbitrator at Eleven Wentworth Chambers in Sydney and an arbitrator member of 20 Essex Street, London. After initially commencing an engineering degree at the University of NSW, he transferred to law, and obtained degrees in Arts and Law from Sydney University and a Bachelor of Civil Law from Oxford University in In 1977 he was admitted as a barrister in New South Wales and was appointed Queen s Counsel in He has maintained a practice as both counsel and as an arbitrator and has been an arbitrator or advocate in international and domestic arbitrations involving commercial, construction, insurance, mining, maritime and sports disputes. International Arbitrations; Currently he is a party appointed arbitrator in an international maritime arbitration between an English ship owner and an Australian charterer. The seat of the arbitration is Perth and the substantive law is the law of Western Australia. The language of the arbitration is English. He is the sole arbitrator in international construction arbitration involving Singaporean and Japanese parties. The seat of the arbitration is Singapore and the substantive law is the law of Singapore. The language of the 1

2 arbitration is English. He was also sole arbitrator in a similar arbitration between the same parties which concluded in June In 2011 he was the lead counsel for the claimant in an international arbitration between Canadian and English interests being conducted under the ICC Arbitration Rules. The dispute concerned a claim for mining royalties of US$21m in relation to a mine in Tasmania. The seat of the arbitration was Sydney. In 2010 he was appointed as presiding member of the panel in two international arbitrations between Australian and Indian parties under the UNCITRAL Arbitration Rules. The disputes related to a claims for entitlements under a joint venture agreement between the parties in the mining industry. The seat of the arbitrations were Perth, Western Australia and the language of the arbitrations was English. Examples of other recent international arbitrations include an appointment as sole arbitrator in April 2009 by SIAC in an international arbitration between Singaporean and Malaysian parties arising out of a contract for services in the assembly of semi-conductors. The arbitration was under the SIAC Arbitration Rules and the language of the arbitration was English. In December 2008 he was appointed as sole arbitrator in an international arbitration of a dispute between a construction company and a mining company relating to the construction of a pipeline in Papua New Guinea. The arbitration was under the arbitration rules of the Australian Centre for International Commercial Arbitration (ACICA). 2

3 In 2008 he appeared as counsel in an international arbitration conducted under the IAMA Arbitration Rules between a Satellite Operator based in Thailand and its exclusive Australian distributor of broadband satellite products and services. In March 2007 he was appointed sole arbitrator by ACICA in an international arbitration concerning an agency agreement between an Australian freight forwarding company and a South Korean freight forwarding company. The language of the arbitration was English and the place of the arbitration was Sydney. In May 2005 he was appointed sole arbitrator in an international arbitration involving a claim between a US supplier of cooling systems to power plants and a Malaysian company engaged in the fabrication of structural steel products. The place of the arbitration was Sydney and the language of the arbitration was English. The arbitration was administered by the ACICA under a set of ad hoc arbitration rules. In addition to international commercial arbitrations, he has since 2000 acted as arbitrator in over 50 international arbitrations in Japan, North America, England, Europe and Australia conducted under the rules of the Court of Arbitration for Sport (CAS) based in Lausanne, Switzerland. He was first appointed an arbitrator member of the CAS in He was a member of the Ad Hoc Division of CAS in Athens in 2004 and in Turin in In 2003 he was the Chairman of the Disputes Committee for the IRB for the Rugby World Cup in Sydney. In 2012 he acted as the chair of the FFA Appeal Committee. 3

4 Domestic arbitration and other alternative dispute resolution experience: He also acts as an arbitrator in domestic arbitrations and is both a court appointed mediator/conciliator and a joint party appointed mediator/conciliator. Examples of recent domestic arbitration appointments include a distributorship agreement dispute, and a royalty dispute each conducted under the arbitration rules of IAMA and two commercial disputes under the arbitration rules of the ACDC. In 2003 he was counsel in an arbitration concerning a dispute arising out of an agreement to construct a steel plant and associated infrastructure conducted under the Commercial Arbitration Act 1984 (NSW). He also acted as arbitrator in a dispute between a ship owner and ship repairer in As junior counsel he appeared in several construction arbitrations and acted as arbitrator in a number of disputed insurance claims. Examples of recent mediations where he acted as mediator include a dispute following the sale of an interest in a rail company in Victoria, and a dispute concerning an agent s commission relating to a large property development on the North Coast of NSW; both disputes were successfully mediated. In addition he has been appointed by the Australian Commercial Disputes Centre to act as an expert to resolves disputes by a process of expert determination. In September 2007, he was appointed as an expert to resolve disputes by expert determination arising under a long term $8 billion contract for the supply of rolling stock. He is also an accredited adjudicator and conducts adjudications in the construction industry. 4

5 Arbitration Institution memberships and offices: He is a member of the Board of Trustees of the Chartered Institute of Arbitrators (UK), a director and a Fellow of the Australian Centre for International Commercial Arbitration (ACICA) and a Fellow of the Institute of Arbitrators and Mediators Australia (IAMA). He is a member of the LCIA, and a Fellow and Past President of the Australian Branch of the Chartered Institute of Arbitrators. He was one of the examiners for the UK Chartered Institute of Arbitrators between 2003 and and was Chief Examiner for 2006 and is the Chair of the Rules Committee of ACICA which was responsible for the ACICA 2011 Arbitration and Mediation Rules. He was one of the Asian Pacific Regional Arbitration Group representatives at UNCITRAL in New York in January 2006 and has been included in The World's Leading Experts in Commercial Arbitration, 7 th Edition, 2008, the Best Lawyers list for 2008, 2009 and 2012 in Australia in the specialty of Arbitration and Mediation and in the list of Asialaw Leading Lawyers 2010 edition for Arbitration. He is a member of the panels of international arbitrators maintained by the Singapore International Arbitration Centre (SIAC), the China International Economic and Trade Arbitration Commission (CIETAC), the Hong Kong International Arbitration Centre (HKIAC), the Korean Commercial Arbitration Board (KCAB), the Kuala Lumpur Regional Centre for Arbitration (KLRCA), the Australian Centre for International Arbitration (ACICA), the Mauritius Chamber of Commerce and Industry (MCCI), 5

6 Badan Arbitrase Nasional Indonesia (BANI) and the Japanese Commercial Arbitration Association (JCAA). International Arbitration Teaching: He is the convenor of, and a lecturer in, the Diploma of International Commercial Arbitration; a course jointly conducted by the University of NSW, the Australian Branch of the Chartered Institute of Arbitrators, ACICA and the KLRCA which has been held since 2006 in Sydney (2006, 2007, 2009, and 2011) and in Malaysia (2008, 2010 and 2012). He was a lecturer in the Diploma of International Commercial Arbitration course conducted at Keble College, Oxford University, England, by the Chartered Institute of Arbitrators (UK) in September He lectures in International Commercial Arbitration at Sydney University, the University of NSW, the UTS and the University of Queensland. In 2009 he taught International Sports Arbitration at Gonville and Cauis, Cambridge University for the Master of Laws programme for Sydney University. He has been a Professorial Visiting Fellow to the University of NSW in International Commercial Arbitration since 2006 and an Adjunct Professor at Sydney University in International Commercial Arbitration since Recent publications include; The Multi- Door Courthouse; an international perspective a chapter in The Future of Dispute Resolution, Ed. Michael Legg, Lexis Nexis, in course of publication 6

7 Philip Morris Asia Ltd v Australia, The ACICA News June 2012, pp27-34 The International Arbitration Act: A Commentary, by Malcolm Holmes and Chester Brown, LexisNexis, December 2011 The Juridical Seat of an International Arbitration ADR Reporter, (July 2011), at 41 Drafting an Effective International Arbitration Clause (2009) 83 Australian Law Journal The Full Court of the Federal Court of Australia Clarifies the Law in Relation to Arbitration Agreements in Landmark Decision, (2007) 26 The Arbitrator & Mediator 55 The art of writing an effective international arbitration clause, The Australian Corporate Lawyer, June 2007, Vol 17, at p12 The Ad Hoc Division of CAS at the XX Olympic Games in Torino 2006 [2006] ISLR 58 The CAS: A case study of an international arbitration institution (2005) 27 Australian Bar Review 56 Recent presentations and lectures include; Philip Morris Asia Ltd v Australia, The Tobacco Arbitration, a CPD presentation to the NSW Bar Association, Sydney, 18 June

8 National Courts and interaction with Arbitral Tribunals; a complex and ever changing surface, a presentation to the 6 th RAIF conference in Bali, Indonesia on 5 May 2012 International Arbitration in a Nutshell, a presentation to the College of Law, Sydney held on 29 March 2012 Recent trends in International Arbitration, a presentation at a seminar organized by the Indonesian Corporate Counsel Association in Jakarta, Indonesia on 1 March 2012 The Hong Kong Australia BIT- The Big Tobacco Arbitration, a paper presented at a conference at Maxwell Chambers, Singapore on 29 February 2012 Drafting an effective arbitration clause under the new Uniform Commercial Arbitration Legislation 2010, a paper presented to the Law Society of NSW on 13 December 2011 The Multi-Door Court House an international perspective, a paper presented at the University of NSW Conference Dispute Resolution in the next 40 years: Repertoire or Revolution? on 1 December 2011 Recent Developments in International Arbitration in Australia; Gordian v Westport, a presentation to the ICC Conference in Auckland, New Zealand held on 14 October The importance of the Juridical Seat when drafting an international arbitration agreement, a paper presented to the CIArb Asia Pacific 8

9 Conference 2011; Investment and Innovation: International Dispute Resolution in the Asia Pacific held in Sydney on 28 May 2011 The New Uniform Domestic Arbitration Legislation A paper presented by the UNSW Contract Law Update, held on 15 March 2011 Linking Domestic and International Arbitration A paper presented at a conference held by the College of Law on Arbitration: A New Regime on 8 March 2011 The Third Standard of Proof in International Arbitration; Comfortable Satisfaction, a paper presented to the School of International Arbitration, Queen Mary College, University of London on 18 May 2010 and to the Law Society of NSW on 9 November Perspectives and practical applications of arb-med, a workshop commentary on a paper presented by Professor Kaufmann-Kohler at the University of Sydney on 10 October A review of the Arbitration Cases of 2006, a paper presented to the annual conference of Institute of Arbitrators and Mediators Australia held in Adelaide in 2006 Recent book reviews include; A review of Concise International Arbitration edited by Loukas Mistellis, Kluwer Law International, published in September 2011 Global Arbitration Review 9

10 A review of International Investment Arbitration, Substantive Principles by McLachlan, Shaw and Weineger, Oxford University Press, published in 2009 Lloyds Maritime and Commercial Law Quarterly A review of Investment Arbitration and the Energy Charter Treaty, edited by Clarisse Ribeiro, JurisNet LLC, 2006, published in the Institute of Arbitrators and Mediators Australia (IAMA) Journal, 2007 A review of Bernstein s Handbook of Arbitration and Dispute Resolution Practice, 4 th edition, published in (2005) Vol 24, Civil Justice Quarterly July 2012 Malcolm Holmes QC Tel: malcolmholmes@wentworthchambers.com.au 10