mARCH 2012 24 Global Arbitration
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ARBITRATION UK
As part of Lawyer Monthly’s focus on Arbitration this month, we speak to David Brynmor Thomas, a Barrister at Thirty Nine Essex Street Chambers in London. David’s practice focuses on international commercial arbitration across a range of industries; from construction and engineering, to project finance, insurance and intellectual property disputes. As well as acting as an advocate, David also sits as an arbitrator, both in the UK and overseas. This breadth of experience makes him perfectly placed to discuss with us some of the key issues surrounding arbitration in the UK at the moment.
Q
Please introduce yourself, your role and your firm.
Thirty Nine Essex Street has a range of practice areas, from the Commercial and Construction Group, of which I am a member, to our very highly rated Public Law and Environmental and Planning Groups.
One of the things I most enjoy about my
practice is the ability to mix my advisory and advocacy work as counsel with practice as an arbitrator. I enjoy the ability to focus on cases that the structure of the Bar allows. Before I came to the Bar I was a solicitor: I was one of the senior partners in the international arbitration group of one of the London based global law firms. Although I was with a firm that supported solicitor-advocacy to the greatest extent possible, I reached the stage where being in a law firm was not compatible with the increasing amounts of lengthy, heavy advocacy that I was doing and wanted to do. Nor was it compatible with sitting as an
arbitrator. As well as the conflicts of interest that you get, which make it very hard to practice as an arbitrator, work as advocate does not fit into the way large law firms are organised.
Q
what are the common causes of disputes between businesses in the UK, and across borders?
We are very fortunate in London that we see disputes arising across the entire range of industries, and for all reasons. The spike of credit crunch-related disputes that arose in 2009, many of which were really just debt actions, has now run through the system. However, money is still tight for commercial parties and disputes frequently arise from the misallocation of risk in projects. Changes in commodity prices over the last few years have led to significant disputes, either in relation to the purported cancellation of commodity contracts or in relation to price adjustments
and re-determinations, especially in long-term energy contracts. Some cases are beginning to come through as a result of the political upheavals in the Middle East during the Arab Spring and I think we will see cases as result of the difficulties faced by Greece and other members of the Euro, although that will be markedly increased if there is a full-blown Sovereign default at any stage.
Very often disputes arise in international
trade because of differences in business cultures. That can be as simple as differing degrees of understanding about how a particular contract structure works – who has responsibility for what. At other times disputes arise because parties do not understand each other's business cultures and practices and misinterpret the other party's actions – for example it is common to see allegations of delay and prevarication where one party is a Government or a Government Agency, although all that really reflects is an ingrained bureaucratic, time-consuming culture in some Governments.
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