J William Rowley QC is lauded by one peer as “in my opinion, the best of the big names of the arbitration space”. He is a master of oil and gas, LNG and renewable energy disputes.
Bill Rowley was called to the Bar of Ontario in 1970 and subsequently in other jurisdictions. Appointed Queen’s Counsel in 1983, he was elected chairman of McMillan in 1996, and chairman emeritus and special counsel on his retirement from the partnership in 2009. He relinquished the latter roles in 2014. In 2002 he joined 20 Essex Street Chambers, one of England’s pre-eminent and longest-established sets of chambers practising in the international arbitration field in both commercial and public international law.
The energy industry is the single largest user of international arbitration, yet reports abound of unenforced awards and challenges to awards in the sector. Is it still the case that, in large disputes, a general counsel will arbitrate rather than turn to the courts?
Arbitration press coverage, taken out of context, may convey a prejudicial view of the status quo. There is a huge volume of international arbitration disputes around the world. In the majority of cases, there is voluntary compliance with arbitral awards, but these are not the cases that make the headlines. Further, the odds of successfully challenging an award in a non-interventionalist seat remain quite low.
Virtually every case I see, regardless of the industry or sector, involves disputants from different jurisdictions. For such parties, and in particular those in energy disputes, arbitration continues to be the overwhelming preferred method of solving disputes. Such counterparties will almost never have sufficient trust in the state courts of the others’ jurisdiction to consider dispute resolution before a national court. This does not mean that every arbitration is without fault; or that arbitrators, counsel and institutions do not need to work hard to provide a better service. More than ever, arbitrators need to manage their cases and workload; be respected for their true independence and impartiality; be known as always being fully prepared; run a good hearing; and deliver their awards promptly. The best arbitrators do this already and this explains why in the energy industry – where millions and often billions are at stake – the parties turn to international arbitration as their preferred dispute resolution method.
In recent years there has been a notable increase in gas price review arbitrations involving the European gas markets. Do these arbitrations require their own specific skill sets and expertise?
The increase in arbitrations involving European gas markets has occurred when price review negotiations have taken place in challenging circumstances including: fall in gas demand; the emergence of liquid traded gas hubs, which undermine the link between oil and gas prices; and competition from other sources of energy, including renewable energy/shale gas and major fluctuations in oil prices. The distinctive aspects of gas price review arbitrations (which, unlike many disputes, do not involve allegations of a legal wrong or a breach of contract) lie in the commercial background of the arbitration. This requires arbitrators and counsel to understand and present arguments in a specific commercial context and the experts and parties to be more closely involved.
The recurring nature of these disputes within the confines of a single agreement over a period of 20 years or more also raises issues in respect of the efficiency and confidentiality of the proceedings, and the binding nature of past determinations. The reality is that most experienced arbitrators and counsel with a reasonable exposure to oil and gas practice are bound to have the skill sets required to determine and present the issues in such disputes.
If you could recommend one practice to improve the conduct of arbitration for users in the energy industry, what would it be?
There is nothing like good-quality, concise advocacy. In today’s world of a covid-19 move to virtual hearings, the best counsel will adjust their written and oral presentations to take account of what may become the new norm. Contemporaneous documents, always important, will begin to elbow out what has been an over-reliance on witness testimony. With 30 years of globalisation behind us and the exponential growth of the arbitration field, a skilled arbitration bar has developed. The way that most are now adapting to the present crisis suggests that international arbitration will prove again why it is the go-to method of dispute resolution in what will remain an internationally connected commercial world.
Major energy arbitrations seem to be determined among a relatively small pool of international arbitrators. Is it the case that there are few arbitrators of whom the big energy companies think well?
There is undoubtedly a relatively select group of arbitrators who are regularly appointed in major energy disputes. But there is nothing unusual in this. For “bet the company” cases, it is only sensible for parties (and their lawyers) to approach as potential appointees arbitrators they know (or know of), who are experienced in the sector in which the dispute has arisen and who are considered able, timely and sensible. This emphatically does not mean that a big energy company will only appoint someone who has decided in its favour in the past. The key to an appointment is a party’s knowledge that, win or lose, it had a fair, well-managed hearing in the past (its arguments were properly heard) and that this is likely to be the case for the current dispute.
The existence of a so-called arbitral “mafia” made up of individuals who are called on time and again to the exclusion of others has, for years, given rise to complaints from non-members of unfair barriers to entry, tantamount to monopolisation. However, the perceived problem is overstated and, in any event, self-correcting. This is because the make-up of the so-called mafia is dynamic. Members of the group change regularly. Those who become gaga, unduly impatient or short-tempered, or who end up in Geneva when the hearing is scheduled for Paris, soon cease to be selected. Rather, they are replaced by younger members of the community who have previously shown their credentials as arbitrators or counsel in other cases.
What advice would you give a fledgling arbitrator in search of handsome energy arbitral appointments?
There is no substitute for establishing your credentials in the energy field. In addition to gaining experience through counsel work or as a member of tribunals, one way to do this is by being seen to make an intellectual contribution. Aspirants should take the time to write and publish. Case notes are always welcome; chapters in practical texts are available; and there are plenty of opportunities to speak and be seen at seminars and conferences. This will give possible appointers a chance to see what you are made of. All of these efforts require time and some may require expense, but aspirants have to be prepared to invest in themselves. Equally important, seek to become part of the arbitral energy community. Without being pushy, this means staying in touch and being seen. The fact that one is known to be alive and well is often a step toward an appointment. I have found that new appointments not infrequently come after meeting someone I have not seen for a while – perhaps because they are satisfied by the sighting that I am likely to survive another appointment.
Do you think the situation with covid-19 will lead to permanent changes in the way major energy arbitrations are conducted?
The inability to travel and the requirement to practise social distancing, driven by covid-19, led initially to the adjournment worldwide of hearings scheduled for the spring and early summer of 2020. That has changed with the recognition that covid-19 may be with us for the next 18 months or so. With this understanding, tribunals and parties alike are either turning to virtual hearings, or accepting that they will be the default back-up if a scheduled hearing cannot be held safely. Although larger, more complex and geographically diverse cases are not the best candidates for virtual hearings, with the right technology and by adjusting hearing hours and timetables even these are now being dealt with effectively. And in a post- covid-19 world, for cases where virtual hearings have been shown to work, they will become more frequent. The cost savings will be enormous.
In addition, the need for all of us to work remotely during the crisis is bringing home the fact that it is indeed possible to go paperless. This will again lead to lasting cost savings. I have been an advocate for some time for the adoption of a common document management platform in the right cases for use by the parties and the tribunal. The present use by law firms of myriad different platforms is a nightmare for the tribunal. I am hopeful that the experience gained in the use of common document platforms (a necessity for a virtual hearing) will propel their wider adoption after covid-19 has been contained.
J William Rowley QC enjoys a stellar international reputation for his invaluable experience acting as arbitrator in high-value and complex commercial disputes.
Bill Rowley was called to the Bar of Ontario in 1970 and subsequently in other jurisdictions. Appointed Queen's Counsel in 1983, he was elected chairman of McMillan in 1996, and chairman emeritus and special counsel on his retirement from the partnership in 2009. He relinquished the latter roles in 2014. In 2002 he joined 20 Essex Street Chambers, one of England's pre-eminent and longest-established sets of chambers practising in the international arbitration field in both commercial and public international law.
He studied at Trinity College School; Carleton University (1961-1965); and the University of Ottawa (1965-1968; LLB magna cum laude and gold medallist), where he was editor-in-chief of the Ottawa Law Review. Before joining McMillan he served as a law clerk to the Supreme Court of Canada (the Hon Mr Justice Roland A Ritchie) and special assistant to the director (now commissioner) of the Canadian Competition Bureau.
His practice at the Bar has involved all aspects of international commercial law, including competition, contracts, banking, oil, insurance, corporate governance, and arbitration law and practice. He is co-author (with Donald I Baker) of Rowley & Baker: International Mergers – the Antitrust Process (third edition, Sweet & Maxwell, 2007). He is past chair of the IBA’s section on business law; its antitrust and trade committee; and its global forum on competition policy. He served as a non-executive member of the board of directors of the Aviva Group Canada (1996-2014), and is a past member of the board of governors of the International Capital Markets Group and an honorary life member and council member of the IBA.
Mr Rowley is chairman of the editorial board of Global Arbitration Review (GAR); general editor of the GAR Guide to Energy Arbitrations (first, second and third editions); and general editor of the GAR Guide to Challenging and Enforcing Arbitration Awards (first edition, 2019). He was also the founding editor of The European Lawyer Reference Series’ Arbitration World (2004–2012). He is highly recommended as an outstanding practitioner in Chambers UK, Chambers UK Bar, Chambers Arbitration, Chambers Global, GAR, The Legal 500 and WWL.
Chambers UK describes him as “exceptional”, “Olympian” and “a big character on the scene”, adding: “No one ever leaves the chambers with a sense of injustice.” Chambers UK Bar says he is “well respected, with a reputation for style”, while Chambers Global, which lists him as a “most in-demand arbitrator” in its arbitration (international) chapter, describes him as an “extremely strong” and “superb” arbitrator and a “sensible chairman”, who is “very efficient and extremely charming”.
WWL places him in its Most Highly Regarded list, and says that he “boasts ‘a giant reputation’ in the international arbitration space as ‘a top arbitrator’” and “possesses vast experience handling both commercial and public international law disputes”. The guide also says that he is “regarded as one of the leading arbitrators in the world for international disputes”, and is “widely acknowledged to be ‘as good as it gets’, particularly for energy disputes”.
He is elsewhere described as a “star performer” (Legal Business Arbitration Report), “one of London's ‘super arbitrators’” (GAR), “one of the elite international arbitrators” (The New Peacekeepers), “a ‘Star’ in the arbitration field” (GAR Arbitration) and “a top-tier arbitrator” (The Legal 500).
He has chaired or participated as a tribunal member or counsel in over 200 international and national arbitrations. These have involved a variety of national laws and investment treaty systems including those of ICSID, NAFTA, England, many European states, Abu Dhabi, Argentina, Armenia, Azerbaijan, Belize, Bermuda, Canada, China, Dubai, Georgia, Ghana, Grenada, Hungary, India, Indonesia, Ivory Coast, Japan, Korea, Lebanon, Mexico, Nepal, Nigeria, Peru, Philippines, Poland, Russia, Serbia, South Africa, Thailand, Turkey, Turkmenistan, Uganda, Venezuela and Zambia, as well as New York, Delaware and California. In addition to multiple ICC and LCIA arbitrations, he has conducted cases under other rules such as those of UNCITRAL, the AAA, SCC, SIAC, HKIAC and several domestic regimes.
Recent arbitrations have included petroleum industry joint ventures and shareholder disputes (Iraq oil fields, over US$20 billion; offshore Nigerian oil fields, over US$4 billion; Kuwait oil fields, over US$7 billion); gas pricing and repricing formulae disputes (Belgium, Canada, Italy, Qatar and US); an $18 billion memory chip joint venture dispute (Japan, US); Bermuda Form insurance claims (Bermuda, New York and London); international trademark licensing (Germany, Japan, US and UK); multiple investor and state disputes (ICSID, NAFTA and UNCITRAL); international telecoms licensing (EU, US, India and Bermuda); telecoms joint ventures (Australia, Mauritius, India, UK and US); oil supply contracts (Poland and Russia, Netherlands and Russia, Venezuela and the US, and Hungary and Ukraine); and production-sharing contracts and AMIs for petroleum products (Africa, Australia, Singapore, Indonesia and India).
He served as chairman of the LCIA board of director (2013-2017), and member of the LCIA Court for two terms. He continues to serve on the board of directors of LCIA India.