1. How many years have you been an arbitrator? What made you choose arbitration and how does your previous experience help in this regard?
I have been an arbitrator for no less than 25 years. I know this because 25 years ago I drove in a classic car rally from Peking to Paris (in which we finished first in class, winning a gold medal!) and I had received only a small number of appointments before setting out on this venture in 1997. Since 1997 appointments have become more regular to the point that, come 2012, I had to consider whether to restrict the number of mediation and arbitration appointments or, on the other hand, retire from my law firm (Ince & Co.) and go it alone. I chose the latter, was then called to the Bar in 2013 and joined a shipping Chambers the same year. I now practice almost exclusively as arbitrator and mediator. It’s fun to transition from poacher to gamekeeper!
I was with Ince & Co. from 1975 to 2012 and, as we know, the overwhelming majority of shipping cases go to arbitration. Therefore I was ‘breathing’ maritime arbitration from my earliest years in practice and this has helped me immensely in my role as arbitrator. Firstly, I’ve got to know how best to prepare a case for arbitration, from the very smallest claim of just a few thousand US$ to the mega multi-million dollar and perhaps multi-party claims – with the majority somewhere in between.
Therefore now as arbitrator I know what is reasonable to expect of solicitors and their clients in terms of case preparation and also in terms of conduct between solicitors. Just today I had cause to remind solicitors in a current arbitration that their conduct was not as it should be and was wasteful of costs!
Also, throughout my many years in practice I got to see all the leading arbitrators in action and therefore an opportunity to learn how they conducted the proceedings; how they conducted oral hearings; and how they wrote their awards. There could be no better training.
2. What are the key areas in which you specialise in and why?
I have specialised in the areas in which Ince specialised. When I joined the firm in 1975 it was almost completely non-departmentalised. There were just a few people handling corporate, property and professional negligence work but the overwhelming majority of us handled shipping work, including international trade, marine, and non-marine insurance and offshore energy. I know that some law firms encouraged specialisation – to the point that they had individuals dealing with little more than, for example, tanker C/P’s. However my preference was to keep my practice as broad as possible – including admiralty, bill of lading, charter party, shipbuilding, and more. The only thing I didn’t handle was ship finance – but when I opened Ince’s Hamburg office in 2001 I actually had to roll up my sleeves to deal with this also – as the office was simply flooded with ship finance instructions!
If I have specialised in anything in the maritime space it is bunkers: I handled quite a number of bad bunkers claims; was invited many years back to join a small working group which led to the founding of IBIA (The International Bunker Industry Association); and co-authored a small book on bunkers with a marine engineer.
I recall that when the first edition of my book came out my son was quite young and one of his school friends was boasting about all the wonderful books his father had written. My poor son retorted: yes, my father wrote a book, something called Bonkers!
3. What makes for a successful maritime arbitrator?
The key requirements are actually spelt out in the English Arbitration Act 1996
“(1) The tribunal shall –
(a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and
(b) adopt procedures suitable to the cirumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.”
Key factors –
BRIGHT: There can be complicated facts to get on top of and tricky questions of law to work through.
FIRM BUT POLITE: No one likes an irritable judge or arbitrator! However, it is necessary to be firm to ensure the timetable is adhered to.
HONESTY, INTEGRITY & IMPARTIALITY: I have certainly heard stories of ‘bent’ judges and arbitrators but in all my years in practice I have never personally witnessed such a thing nor had to suffer one as co- arbitrator. There have been cases where as solicitor I have questioned the intelligence of the judge or arbitrator in the conclusions he or she came to, but I have never been in doubt as to their integrity.
Impartiality is also very important. As is said, justice must not only be done but be seen to be done. So, what are you to do if your former law firm has previously acted for one of the parties; or if you personally have acted for one of the parties when you were in practice (in my case, now 10 years ago)? Issues like this need most careful consideration and the motto must be: if in doubt, always disclose.
If you get all these things right you have the potential to be a successful maritime arbitrator. The rest is down to the cut of your jib!
4. What can be done to raise greater awareness of maritime arbitration and its importance among the Maritime community?
My answer would be that the maritime community already has good awareness of maritime arbitration. According to the latest HFW survey of maritime dispute resolution, over 83% of maritime disputes worldwide are resolved by maritime arbitration in London. Certainly, London and Singapore are the two most popular maritime dispute resolution centres and I would guess that if you combine the figures for Singapore and London then the two would account for over 90% of worldwide maritime disputes.
Arbitration proceedings – certainly in London and I believe also in Singapore – are private and confidential to the parties and that puts constraints on publicity. However I know that both the LMAA and SCMA have active programs of seminars and conferences and these of course raise public awareness.
Looking to the future my own plea would be to develop and publicise hybrid mediation/ arbitration offerings allowing parties to benefit from the best of what both have to offer. Singapore has taken the lead in this with its Arb-Med Protocol. Also, the Singapore Mediation Convention is now in force internationally and some say it will do for mediation what the New York Convention has achieved for arbitration – to propel it to pole position. Therefore, working on combined mediation/ arbitration offerings should guarantee a bright future for both!
With many years international and domestic experience in mediation, arbitration and litigation Lux Mediation can give guidance on any dispute with a view to a swift and effective resolution.