A dual-qualified barrister and accountant, Jane has over 20 years’ experience of international disputes in the energy, natural resources and infrastructure sectors. “A superb lawyer and an excellent litigator”, “devastatingly good for complex cases” and “relentless in her efforts for her clients”, Jane is described as “a sophisticated advocate” who is “very good in cross-examination”. Jane works extensively in Africa, the Middle East, Asia Pacific and Latin America as counsel and arbitrator.
What attracted you to international arbitration in the construction sector?
I wanted to be a tax lawyer when at university (unusually for a law student, I had a science/mathematics background, and reading The Lawyer in the law faculty I had noticed that tax lawyers had the highest salaries) and was recommended to qualify as an accountant before moving to the Bar. So I joined Coopers & Lybrand (now PricewaterhouseCoopers) straight from university. My team was responsible for the tax affairs of energy and construction companies, so I got to know the industry well. I then spent three years working in the expert witness group at PwC specialising in international energy and construction disputes, after which I was completely hooked on international arbitration and construction!
How does your 15 years’ experience working in law firms help your practice as a barrister?
I was fortunate to spend many years working in the international arbitration practices at Shearman & Sterling and Freshfields before returning to the Bar in 2014. Working beside leading arbitration practitioners provided a fantastic training, and exposed me to a range and quality of disputes and opportunities for advocacy that I would never have experienced had I spent my formative years as a junior at the independent Bar.
You have a very international practice. What are the main differences in the types of disputes you see between the regions and jurisdictions in which you work?
International contracting is increasingly a global market, and the types of disputes differ by type of project rather than region to region. Depending on how developed the country is, the projects range from basic infrastructure such as roads, schools, hospitals and water treatment facilities. At the next stage of development we see conventional power plants, refineries, airports and ports, etc. In the most developed countries, we see complex industrial facilities, nuclear power plants, desalination plants and major transport hubs. Each type of project brings its own challenges and disputes.
To what extent have initiatives aimed at increasing cultural and gender diversity in international arbitration impacted the construction sector? What more needs to be done?
The international construction legal community is notably diverse, with men and women from many jurisdictions and cultures practising construction law at a senior level. The same is true for engineers, architects and other construction professionals. Yet this diversity does not translate into diverse tribunals, dispute boards and adjudication panels, which are all too often restricted to a narrow portion of the wider community.
The international arbitration community has made great efforts in recent years to address diversity issues in arbitration; I have personally witnessed a significant change in approach, in particular, from the major international institutions in relation to gender diversity. But my experience and anecdotal observations from friends and colleagues suggest that construction disputes – in arbitration, before dispute boards and in adjudication – are still decided by panels who do not reflect the diversity of practising construction lawyers and engineers, etc, or the regions in which major projects are being constructed.
I discovered that there was no information readily available that looked at diversity on a sector basis. To obtain some data, and test whether anecdotes match reality, I have been co-ordinating a survey with the support of Global Arbitration Review, the ICP and Arbitration Committees within the IBA, ICCA, ArbitralWomen, Women in Arbitration, the Dispute Resolution Board Foundation and several societies of construction law. The data collected should help us understand if we are falling behind our peers in the wider arbitration community, and if so, why and what can be done to improve both gender and cultural diversity going forward.
What steps must the arbitration community take to retain international arbitration’s credibility as an effective means of resolving construction disputes?
From my perspective, there are three issues that need addressing. The first is the diversity of the decision makers deciding disputes involving public infrastructure projects. There is also the confidentiality of arbitrations involving public infrastructure projects, and the speed and cost of construction arbitrations.
With the ever-increasing availability of information, and the increased public accountability for how public monies are expended, it is difficult to justify why arbitrations determining how much money governments are to pay out to (or receive from) contractors for public infrastructure projects should be conducted behind closed doors, and with the awards remaining confidential thereafter. Combined with the fact that these arbitrations are often conducted by a limited pool of counsel and arbitrators, who more often than not do not reflect the cultural diversity of the region in which these projects are constructed, it is not surprising that concerns are being raised by the media, politicians and others as to the use of “secret courts” to determine international disputes.
Further, in my view, the duration (and cost) of many construction arbitrations has become unacceptable. The construction sector has given rise to some of the most lengthy and costly arbitrations in history. Dispute boards manage to resolve complex disputes at the interim stage within (typically) 84 days, but even a “simple” construction arbitration can take years to get from Request to Award, with multimillion-dollar fees (for counsel, experts and arbitrators) not uncommon. In my experience, there is rarely a significant difference in the decision issued by the dispute board and the final arbitration award, save for several years and millions of dollars of fees. Arbitration originated as a forum that provided quick resolution of disputes by individuals who had experience of the industry; I fear we have forgotten both our origins and that we are offering a commercial service to the users of construction arbitration. We need to step back and ask our clients what they want from arbitrations and ensure we deliver, or they will take their disputes to be resolved elsewhere.