Called to the Bar in 1966, Sir David practised in commercial law. He became junior counsel to the Treasury in 1978 and in 1981 took Silk. In 1995, he became head of chambers at 2/4 Essex Court and from 1998 was appointed as a judge of the Commercial and Admiralty Courts in London until 2011 (he was also the judge in charge of those courts 2004-06). He is now an arbitrator at 10 Fleet Street and has been appointed in over 200 references. Appointments have been accepted under the auspices of LCIA, ICC, LMAA,HKIAC, SMCA, KLRCA, Bermuda Form, DIAC; topics including shipbuilding, insurance (marine and casualty), reinsurance, joint ventures, charterparties, oil and gas, sale of goods.
Is there any aspect about sitting as a judge that you miss – or don’t miss?
I miss hardly anything except for my colleagues in the Commercial Court. Even then, many of them have already come to join me and more are due to arrive soon! Emerging into the arbitration market is to take on a breath of fresh air – not least being able to do things when you want to do them. Holidays are no longer confined to legal holidays. If a case settles, one is able to escape: nothing else is put into your list. The remuneration is fairly generous. If the desire to act as a judge grabs me again I have the advantage of sitting as Deputy Chief Justice of the Dubai International Financial Centre Court.
Has your transition to arbitrator posed any fresh challenges?
It takes time to learn to keep a note of your hours: it is quite instructive to see how much time one can spend doing very little! I have also found it difficult to keep pace with the interlocutory work and correspondence. It is instructive to entertain and resolve concerns about independence and impartiality. By the same token, there is a need to resist expressing a provisional view too forcibly when a member of a panel of arbitrators with different attitudes.
In a recent survey*, 90% of the respondents said that international arbitration was their preferred DR mechanism – why do you think it is perceived as such an effective mechanism for business?
The reasons for the popularity of arbitration is pretty obvious: namely the principle of confidentiality, absence of any appeal mechanism and ability to select a member of the tribunal. But the main reason for its success is the New York Convention – something that may be less significant if the new Hague Convention is adopted widely. Certainly arbitration cannot genuinely claim to be a cheaper or swifter form of dispute resolution than court hearings and I detect a move back to state courts with commercial law experience such the English Commercial Court, the DIFC Court, the Singapore International Commercial Court to name three.
*2015 International Arbitration Survey ‘Improvements and Innovations in International Arbitration’ (White and Case and Queen Mary, London University)
In the same survey, one of the worst features of arbitration was perceived as a ‘lack of insight into an arbitrator’s efficiency’ and a recurring theme was the need for a higher degree of accountability. What do you think might be done to counter this perception?
I assume the primary concern is delay in obtaining a date for hearing and delay in producing an award after the hearing. The problem is certainly exacerbated by the appointment of arbitrators with a massive workload – something which can be a deliberate ploy by an appointing party. To some extent this is the inevitable consequence of the traditional employment of a tribunal of three people. Unlike an appeal court, having three ‘judges’ in a first instance suit is very time consuming.
For my part I would be resistant to the widespread engagement of secretaries to tribunals to help resolve the problem as is sometimes suggested. The primary burden must be on the party appointed arbitrators to select a chairman who is not unduly busy.
How would you like to see the arbitration landscape develop?
- Greater insistence on preparing a list of issues.
- Avoidance of Redfern Schedules.
- Greater discipline on the length of statements.
- More encouragement of meetings between experts to narrow the issues.
- Greater discipline on length of written submissions.
- Less focus in awards on the history of the reference.
Outside of London, do you have a preferred arbitral seat/centre – and why?
Although the arbitration facilities to be encountered in, say, Hong Kong or Singapore are much better, New York remains my favourite – always involves an injection of energy and excitement.
What qualities do you think make a good arbitrator?
Good manners and patience – alongside a determination to keep a focus on the essence of the dispute. The ultimate ambition must be to satisfy the need for the parties to have a reasoned decision in a reasonable time frame.
What tips would you give counsel appearing in arbitrations?
I find it difficult to identify advocacy skills in the arbitration field which are different from those needed for oral hearings in court. There is a call for increased informality.
What advice would you give to a senior junior/QC who wishes to sit as an arbitrator?
Have no inhibitions about announcing your interest to all your contacts. Try and attend a couple of large arbitration conferences a year. Put yourself forward to speak at a couple of smaller conferences within your field of expertise. Try and grab anything that comes along rather than wait for a plum.