The founding partner of Clifford Chance’s international arbitration practice, John was one of the first solicitors to undertake the role of advocate before international arbitration tribunals. A two-term president of the ICC International Court of Arbitration, he introduced the 2012 ICC Arbitration and Mediation Rules and led the initiative to move the Court to new premises in Paris. He is active worldwide as an arbitrator in investor-state and commercial arbitrations, from bases in Hong Kong and London.
Describe your career to date.
I was a partner in Clifford Chance for 25 years between 1983 and 2008, the founding partner of the firm’s international arbitration practice and one of the first solicitors to appear regularly as an advocate in international arbitration proceedings. On leaving Clifford Chance I took up the presidency of the ICC International Court of Arbitration in January 2009 and served two terms until June 2015. During my term of office, the ICC Court moved to new premises in Paris, the Rules underwent a significant revision (in 2012), the governance of the Court was overhauled and a representative office of the Court was opened in New York, building on the successful opening in Hong Kong. I then went into practice on my own account as an arbitrator. I maintain offices in Hong Kong and London.
You recently retired as chair of the ICC’s Arbitration programme in the UK. What did you take away from the experience?
My task at ICC (UK) was to create a new arbitration committee and to appoint a new arbitration consultant in order to restore the ICC’s links with its user base in the UK. Having started from scratch, the committee and its new appointments subcommittee earned the confidence of the ICC Court as a source of prompt and effective arbitral appointments, and the profile of ICC (UK) among UK users was raised significantly. I was concerned with ensuring a generational shift at the handover of the committee and that has been achieved, as has a respect for diversity in the appointments made.
Investor-state arbitration has historically received criticism for its lack of transparency. To what extent should proceedings be made more transparent?
In my experience the process, in practice, can already be made as open as the parties wish it to be. I have been involved in more than one investor-state arbitration in which the public has had full access (funnily enough, few turned up!) and in another, live coverage of the proceedings was provided by telephone and video links. In other cases, substantive pleadings have been placed in files open to public scrutiny. I was present in the UN working group when the Transparency Rules were debated and finalised. It did not go unnoticed that, once the likely impact of full access was appreciated, it was a number of states that expressed the most serious reservations about opening the doors to more searching scrutiny.
Looking back over your career, what is most memorable arbitration you have been a part of?
The answer is: probably the first ad hoc arbitration in which I was involved and in which Lord Wilberforce served as the umpire in his first arbitral appointment since his retirement as a Law Lord. One of the co-arbitrators was Wafic Saïd. My firm instructed Johan Steyn QC, as he was then, and Martin Hunter was the tribunal secretary. The arbitration was held in the surreal (and quite impractical) surroundings of a gilded penthouse suite at a palatial London hotel. It involved the sharing of remittances from a series of international contracts for the sale of arms and our client was one of the wealthiest men in the world. Lord Wilberforce’s award was a masterclass in drafting. It was short and it packed quite a punch.
What advice would you give to someone starting out in arbitration?
International arbitration is now international big business. There has been an extraordinary growth in the number of “players” across the world. Competition to gain a foothold in this market for young practitioners trying to break into it is fierce. Part of the task is actually managing their expectations; there are not that many openings. Luck inevitably plays a part, but time spent in a practice that offers real experience as part of a counsel team and/or working as an administrative secretary with an established international arbitrator are recognised pathways – and rightly so.