Thought Leaders
Russell Thirgood
Thought Leader
Q&A
WWL says
Russell Thirgood is lauded by peers for his “commercial and effective advice” as well as his “impressive understanding of construction law”.Questions & Answers
What has been your greatest achievement to date?
I think one’s greatest achievements are private affairs and occur in the silent chamber of one’s soul. Many colleagues of mine have regarded my move to become an independent international arbitrator to be a courageous one. Enduring achievement requires persistence and resilience. Sometimes, one must devote decades to the pursuit of one’s goals.
Why did you choose to specialise as an arbitrator and what do you enjoy most about this role?
I enjoy working in collaboration with the parties and their counsel to resolve the dispute(s) before me. There is also a solitude in respect of the deliberation and award writing process which gives me a lot of professional satisfaction. The parties have invested a lot in the arbitral tribunal and it is humbling to be entrusted with the responsibility of giving their case deep consideration and then explaining one’s reasoning in a concise and understandable manner.
What are the keys to successfully conducting an ad hoc arbitration as an arbitrator?
When one does not have the support of an arbitral institution, moving the arbitration forward in a spirit of collaboration with the parties is even more important than ever. I have been very fortunate to have had highly skilled and experienced counsel appear before me. Being responsive and treating counsel with great respect generally goes along way to assisting the entire process, including ensuring that concise and focused submissions are provided on the determinative issues of a case.
What are the best strategies for arbitrators when managing non-responsive parties in an arbitration?
Natural justice is, of course, a key feature of arbitration. It must be delivered even when one of the parties is non-responsive. A balancing act is required, which is recognised in most arbitration legislation, to ensure that a reasonable opportunity to be heard is given while not unfairly delaying the process against the interests of the responsive party (which generally, although not always, is the claimant).
How can arbitrators balance getting to the heart of a dispute and delivering natural justice to parties but also ensure proceedings are conducted as efficiently as possible?
While pleadings certainly have their role, I prefer not to get involved in unnecessary technical points in the early stages of an arbitration. I have found that it is not until the parties have exchanged their evidence, in terms of written statements and expert reports, that clarity can emerge and focused submissions provided. So, I like to move the arbitration to this stage as soon as possible with, of course, the co-operation and consent of the parties.
What role does arbitration have to play in the construction industry in a world impacted by covid-19 and in the future?
Given the cross-border elements of many construction projects, arbitration is likely to remain the preferred process for final determination of disputes. I think the covid-19 impact will be profound in terms of the arbitral process. Virtual procedural conferences and substantive hearings have become the norm. Technology will continue to greatly assist with efficiency and is something to be embraced. I suspect the substantive hearing itself will become a very focused affair. Counsel may only require a short time for precise cross-examination (considering so much evidence from a construction project is already captured in writing and electronic means).
What skills have you learned as a construction specialist that are transferrable to disputes in other industries as an arbitrator?
Construction disputes can be very complex and involve many claims, witnesses, experts and documentary evidence. This requires greater discipline, pragmatism and wisdom in case management. I think that high communication skills are required to get the best out of counsel and work together to find sensible processes. All of these attributes are readily transferable to other industries.
What is the best piece of advice you have ever received?
It’s somewhat of a cliché but the best piece of advice has simply been to “be oneself”. Being an arbitrator is a calling. One will know in the depth of one’s soul whether one is up to it. The job requires wisdom, deep thinking, level-headed judgment and simply being a safe pair of hands.
Global Leader
Professional Biography
WWL says
Russell Thirgood is lauded by peers for his "commercial and effective advice" as well as his "impressive understanding of construction law".
Biography
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.
National Leader
Professional Biography
WWL says
Russell Thirgood is recognised for his strong grasp of complex mining and construction disputes, having sat as arbitrator of high value international and domestic matters.
Biography
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.
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