Thought Leaders

Russell Thirgood has represented clients in major and complex dispute resolution, particularly construction and infrastructure disputes for over 20 years. Russell is also a practising arbitrator and sits on the panels of a number of international and domestic arbitral institutes. He has arbitrated disputes arising out of a range of industries including infrastructure, construction, mining, energy and property. Russell is head of arbitration and a partner at the independent Australian law firm McCullough Robertson. He is recommended and ranked in numerous legal publications in the fields of construction law and international arbitration.

What attracted you to a career in construction?

Twenty-five years ago I studied and was fascinated by the whole concept of international commercial arbitration. When I joined my firm, McCullough Robertson, as an articled clerk all those years ago I looked around at our practice groups to see which ones did arbitration work, and I found that was taking place in the construction group. My very first case was an International Chamber of Commerce arbitration in Hong Kong involving a drilling and blast contract for some dredging works. Through the world of arbitration I came across the world of construction and I must say I love both of them. And they often combine. There are so many characters and “real people” in construction and there are some wonderful intellectual and practical challenges in running arbitration cases (or sitting as arbitrator).

What do you most enjoy about working in disputes?

A mentor of mine once told me that working in disputes could be terrifying but never boring. I think there is a lot of truth in that. There can be a lot on the line with big cases and the pressure on all stakeholders in a dispute can be immense. As counsel (or as an arbitrator) it is critical to approach one’s work with a degree of detachment, although admittedly that is often easier said than done. The thing I most enjoy about my job is that every case is different. There are just so many moving parts and combinations and permutations. It is impossible to be bored!

What are the main challenges you face when cases run on for five years or more?

As the partner in charge of a case it is ultimately my responsibility to ensure that a credible and convincing “case theory” is developed that accords with the law and facts. The litigation or arbitration process will then stress test that “case theory”. I find that in the first few months of getting stuck into the facts of a case (mainly by speaking with multiple witnesses and reviewing documents), I have a pretty good idea of where the merits lie. My “case theory” and strategies (such as making sealed offers) are tailored around that. When supervising dozens of lawyers, experts, etc, over a period of five years or more, the constant challenge is ensuring that the team remains faithful to that case theory and does not go off on tangents unnecessarily. I think it is catastrophic for a party’s case to substantially change their approach halfway through a process. The system is just not designed for that.

How does your work as an arbitrator enhance your counsel work?

I have learned so much about effective advocacy by being an arbitrator. As an arbitrator, I appreciate respectful advocacy that focuses on the issues in dispute through a careful analysis of the relevant law and facts. I find aggressive tactics that you can see from time to time in correspondence between lawyers to mostly be irrelevant and quite unhelpful. Accordingly, my work as counsel is tailored to being helpful to the arbitral tribunal and presenting my client’s case in a clear and concise manner.

Sources have noted that it is becoming more common to include arbitration clauses in construction contracts. How will this development affect your practice?

I have noticed many contractors from Europe, the US and Asia coming to Australia to work. These contractors bring with them a wealth of experience, including international institutional arbitration experience. They are generally more comfortable with an impartial arbitral tribunal than with a host nation’s judiciary, so as a result, we are seeing more and more arbitration clauses being inserted into construction contracts. There are so many benefits to arbitration clauses where there are international interests at stake, the primary interest being enforceability. A friend of mine who practises at an international law firm in Bangkok told me the junior associates at his firm learn that if they do not advise their clients on the merits and benefits of arbitration clauses, they are being negligent. In my view, there is certainly some truth in that statement.

How is increased use of renewable energy impacting the practice area?

For the first 20 years of my practice I did a lot of construction work in the mining sector, particularly in coal. With society being much more environmentally focused, I have noticed in the past few years an increasing number of renewables projects being delivered. I have worked recently on wind farms, hydro power and solar farms. There are challenges that the renewables industry faces, but it is a very exciting time.

How would you like to see your practice developing over the next five years?

In recent years I have taken on more appointments as arbitrator. I find this work to be deeply satisfying and suspect that in the second half of my career I will be undertaking more and more third-party work. One never knows where appointments may come from, but I suspect that initially they will be in the industries that I have predominantly practised in, including construction, infrastructure, mining and renewables. I also very much enjoy mentoring younger lawyers and being part of their personal and professional growth.

What advice would you give to younger practitioners hoping to one day be in your position?

My advice to younger practitioners is to play to their strengths and do what makes their hearts sing. Additionally, given the gender disparities still evident in my fields, I would particularly encourage female practitioners to have confidence in their knowledge and abilities, and to be courageous in seizing opportunities and developing networks. Finding a mentor or a “champion” can be a fantastic first step.

Russell Thirgood (BA, LLB (Hons), LLM (Hons, class 1), Dip Const Law, Dip ICArb, FCIArb, FACICA) is an pre-eminent Australian arbitrator with significant experience in resolving construction disputes.

Since 1998, Russell has assisted parties with major and complex dispute resolution, particularly construction and infrastructure disputes. His cases have focused upon resolving complex claims including variations, time-related claims and defective works claims.

He has been arbitrator or dispute resolver for some of the world’s largest mining and construction companies, together with ASX-listed companies and Australian government entities. He is experienced in all forms of dispute resolution including litigation in the superior Australian courts, domestic and international arbitration, and adjudication under security of payment legislation.

Russell sits on the panels of a number of international and domestic arbitral institutes. He has arbitrated disputes arising out of a range of industries including infrastructure, construction, mining, energy and property. Russell is the author of the arbitration rules of the Resolution Institute, the most regularly used rules for arbitrations in Australia.

Russell is head of arbitration at the independent Australian law firm, McCullough Robertson. McCullough Robertson was named Lawyer Monthly’s Arbitration and Litigation Law Firm of the Year in 2013 and 2017.

He is recommended and ranked in numerous legal publications in the fields of construction law, litigation and arbitration. Adani’s president of international business stated: “[Russell’s] track record was excellent with us and he would be my go-to counsel for any dispute resolution.”

Russell has been editor of The Arbitrator and Mediator Journal since 2002, and is the author of numerous articles about construction law in Australia.

Russell Thirgood is a renowned independent international arbitrator experienced in resolving complex and high-value construction, infrastructure, energy and natural resources, and commercial disputes.

Russell is a member of Int-Arb Arbitrators and Mediators in London and Washington, DC, and has an office in Brisbane. He previously spent nearly 23 years at McCullough Robertson Lawyers as a senior partner and head of international arbitration.

As arbitrator, Russell takes a modern and dynamic approach throughout the arbitration process. He is responsive to the needs of parties and their counsel to ensure the proceedings are conducted effectively and efficiently. He is considerate, collaborative and concise. International legal directories recognise Russell as an esteemed authority on major resources and infrastructure disputes.

Russell has conducted cases throughout Australia, Asia, the US, UK, the Middle East, Africa and Europe. His construction and infrastructure cases have involved many issues including delay; disruption; prolongation; acceleration; global or total costs claims; liquidated damages; the doctrine of penalties; extension of time; scope changes; frustration; force majeure; repudiation; waiver; estoppel; quantum meruit; restitution; and defects.

He is a Fellow of the Chartered Institute of Arbitrators and sits on the panels of key international and domestic arbitral institutions.

Russell is the current chair of the Resolution Institute (the pre-eminent dispute resolution organisation in Australia and New Zealand) and a director of the Australian Centre for International Commercial Arbitration.