Anthony Sinclair is "a market leader" whom market commentators highlight for his "stellar reputation in investment treaty work" and "excellent arbitration knowledge".
Anthony is counsel and arbitrator with more than 20 years’ experience, specialising in commercial and investment treaty arbitration, and public international law. He has an LLB, and a BA in political science, from Canterbury University, New Zealand; and an LLM and a PhD in international law from Cambridge University, UK. He is also a widely published academic commentator. He is dual-qualified, admitted to practise in New Zealand, and England and Wales.
What do clients look for in an effective arbitrator?
Above all, quality of analysis and decision-making. There is no substitute for the correct result. Beyond this, I look for the courage and conviction to follow through a line of analysis to its natural conclusions. Thus, for example, if a claimant has succeeded in its principal claims, and the law allows it, it should be awarded its costs. If specific performance or restitutio in integrum are available remedies, and the facts call for it, such relief should be awarded. If a case can be disposed of or materially narrowed on a preliminary issue, it should be.
Since you began your career, what has been the biggest change you have seen in relation to the way that arbitration proceedings are conducted?
Written submissions have become lengthier across the board, stuffed with more and more arguments, issues or details. They are frequently turgid, unappetising reading. I look back on written advocacy from 20 or more years ago and find much of it to be more surgical, more discerning and even more elegant than the heavy materials so many counsel produce today. I put this down to arbitration teams at some big firms becoming more and more leveraged, with lengthy riders prepared by more junior lawyers, and relatively less time invested in the submissions by those more senior. For my own part, whether drafting a memorial or an award, I aspire to be as concise and clear as possible.
To what extent has maintaining expertise across a broad range of industry sectors benefited your practice?
It is enormously helpful. I have been fortunate to have been counsel in dozens of matters involving the mining, oil and gas, telecoms, and transportation/logistics sectors. Every case adds a new layer to your knowledge and fine-tunes your intuition. Clients certainly look for experience in their industry sector when choosing counsel. Clients value lawyers who are not only great advocates and technical lawyers, but who also have detailed knowledge and experience of their business. Industry experience helps counsel more quickly to understand and test the evidence of witnesses and experts and to appreciate the significance of particular facts.
How do you, as an arbitrator, try to ensure hearings are fair for all parties?
I have conducted a number of hearings where one party is not represented or participating, as well as cases where there is an imbalance in the counsel teams and resources on each side. These cases remind one to ensure that all parties have an equal opportunity to be heard, and to safeguard that opportunity at all times, even if a party or its counsel makes bad choices. If an issue is troubling me, and it bears upon a matter I need to decide, I will frequently put my own questions to witnesses, or counsel.
What steps does the arbitration community need to take to improve the efficiency of international arbitration proceedings?
We need to keep up constant pressure on arbitrators to deliver timely awards. The time it takes for arbitral tribunals to deliver awards compares unfavourably to the performance of judges in the English commercial court, for instance. Arbitrators, as well-remunerated service providers, should be seeking to outperform the courts and exceed the parties’ expectations.
How have you seen the role of third-party funding in arbitration evolve over the past few years?
Third-party funding has moved on from being a niche idea for funding single claims, to an ever-present opportunity for parties and law firms alike, to help manage their cashflow and liquidity.
What steps can younger arbitration practitioners take to improve their chances of getting appointments? Is there an important role to play here for experienced lawyers?
In my own experience, my earliest appointments came from the institutions – the LCIA and the ICC – and these were the product of contacts with senior members of the court in each instance. So, participate in and support the activities of the leading arbitral institutions. I was lucky to receive my first appointment while still in my mid-20s. I have found the institutions genuinely committed to giving younger lawyers the responsibility and opportunity to develop through appointments in smaller cases. I was also fortunate to have the support of a number of experienced arbitration practitioners, who were happy to allow me to take on these opportunities and to help guide me in the process.