We are grateful to Mr. Michael Black QC, who agreed to give us this interview. We are delighted that he will be sharing his views on his practice as a counsel and an arbitrator.
To give our readers a brief introduction of Mr. Black, he has practiced as an international arbitration lawyer throughout his career and for more than 25 years has regularly received nominations as sole arbitrator, party-appointed arbitrator and chairman under the City Disputes Panel, ICC, LCIA, DIFC-LCIA, ADCCAC, UNCITRAL, LMAA, SCMA and DIAC Rules as well as under ad hoc procedures. He is recommended in both Legal 500 and Chambers & Partners in this area and said to be “top of many people’s list for international arbitration work.”
He has appeared as counsel in several leading English and Privy Council cases concerning arbitration including B v A – whether failure to apply chosen law a “mere error” or procedural irregularity – the status of dissenting opinions; Michael Wilson & Partners v Emmott – challenging tribunal’s award as to its substantive jurisdiction – decision on procedural matters; Cetelem SA v Roust Holdings Ltd – whether judge has jurisdiction to make interim mandatory order pending ICC arbitral proceedings – whether court usurping arbitral process; Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited – powers of Court of Appeal to review decision of judge on appeal from arbitrator; Al-Naimi v Islamic Press – duties of judge when considering a stay of court proceedings; IPCO v NNPC – enforcement of a New York Convention award subject to challenge at the seat; Anzen v Hermes One – optional arbitration clauses and stay of proceedings. ZCCM v Kansanchi – procedural order or award – section 68 Arbitration Act 1996.
He has an international reputation as an expert in dispute resolution procedures. He spent nearly five years as a member of the English Civil Procedure Rule Committee. In that time, he was particularly involved in the draftsmanship of the English Court Rules relating to Arbitration Claims. As a result of this experience, he was retained to draft the procedure rules for the Courts of the Dubai International Financial Centre. He was involved in the draftsmanship of the DIFC Arbitration Law 2008.
He is a member of the Court of the Casablanca International Mediation & Arbitration Centre and the ICC Global Commission on Arbitration and ADR.
As Visiting Professor at Manchester University, he lectures and supervises at Masters’ and Doctoral level in international dispute resolution. He has written widely on arbitration both in the UK and the USA.
Mr. Black, we welcome you to the Arbitration Workshop Blog and thank you again for agreeing to this interview.
Q.1. How did your interest in commercial dispute resolution in general and arbitration in particular begin? For how many years did you practice before you started accepting nominations as a Sole Arbitrator or a member of an Arbitral Tribunal. Do you believe your practice helped you in developing the skillset to serve as an arbitrator as well?
A1. In fact, as soon as I began my pupillage in 1977 I was exposed to both shipping and construction cases. Thereafter my junior practice developed in the areas of construction and insurance where there was a tradition of arbitration. The huge increase in construction disputes in the UK in the 1980s consequent on the economic crises led to an upsurge in domestic construction arbitration.
I began receiving a few appointments in the domestic construction area before I was appointed Queen’s Counsel in 1995 but it was thereafter that they became more numerous and international in nature.
Yes of course, I firmly believe that one cannot sit in any judicial capacity unless one has acted an advocate. Without that experience the tribunal has no understanding of the pressures on the advocates and why matters are presented in the way they are.
Q2. You are considered an expert on Middle Eastern dispute settlement and were influential in the early days of working of the Dubai International Arbitration Centre and the Dubai International Financial City. When and how did you decide to work in the Middle East and what factors led to choosing Dubai as one of the major seat of practice both as counsel and as an arbitrator?
A2. I think it is true of most lawyers’ careers that things often happen by accident. The trick is to recognise that fate has provided you with an interesting opportunity. I had always had an interest in the Middle East and indeed both my first major case as a very junior and my first trial in the High Court without a Leader were Middle East cases. Those who were setting up the DIFC approached me in 2003 to assist with the establishment of the DIFC Courts because of my experience on the English Civil Procedure Rule Committee.
Q3. To the uninitiated, how do DIFC Court and the DIAC fare as venues for neutral arbitration? In your experience, which kind of parties have switched to DIAC from other neutral hubs like Singapore, Hong Kong, London, Paris and New York.
A3. I think DIAC remains more focussed on Dubai disputes and in particular in the construction arena. DIFC-LCIA is more commercial and more international in outlook. Arbitrations administered by that institution are often subject to the curial jurisdiction of the DIFC Courts. The DIFC Courts are one of the most arbitration friendly jurisdictions in the world. The bench has always comprised distinguished international lawyers - the first Chief Justice was Sir Anthony Evans, former English Court of Appeal judge and President of the Chartered Institute of Arbitrators. He was followed by the famous Singaporean arbitrator Michael Hwang SC. The current Chief Justice is the former Chief Justice of Malaysia and bench has recently been joined by the former Chief Justice of Australia. It is hardly surprising that such a jurisdiction attracts business from all over the world.
Q.4. India is making progressive steps to develop a few of its cities into International Arbitration hubs. The attempts can be seen in the form of legislative reforms (2015 and 2019 amendment to the Arbitration and Conciliation Act, 1996), executive actions (creation of the New Delhi International Arbitration Centre) and also by the judiciary by practicing minimal interference in International and Domestic Arbitration matters. In your experience, what factors go into making a good neutral hub for arbitration. Could you let us know from your experience of working in London, Singapore and Dubai as to what could steps could cities like New Delhi and Mumbai in India take to become an arbitration hub?
A.4. The most important factors in the success of an arbitral seat are conveniently set out in the Chartered Institute’s 10 “London Principles”:
·an arbitration law providing a good framework for the process, limiting court intervention, and striking the right balance between confidentiality and transparency
·an independent, competent and efficient judiciary
·an independent, competent legal profession with expertise in international arbitration
·a sound legal education system; the right to choose one’s legal representative, local or foreign
·ready access to the country for witnesses and counsel and a safe environment for participants and their documents
·good logistical support, including transcription, hearing rooms, document handling, and translation
·professional norms embracing a diversity of legal and cultural traditions, and ethical principles governing arbitrators and counsel
·well-functioning venues for hearings and other meetings
·adherence to treaties for the recognition and enforcement of foreign awards and arbitration agreements
·immunity for arbitrators from civil liability for anything done or omitted to be done in good faith as an arbitrator.
Q.5 You have extensively worked both as a counsel and an arbitrator. Based on your experience, could you tell us your opinion about the issue of double hatting? What practices help you in switching between your roles as a Counsel and an Arbitrator? Do you believe institutions guidelines could help in addressing this issue and allaying the concerns of litigants?
A.5. I go back to what I said before not only do I think it is not a cause for concern but I think it is highly desirable if not essential.
Q.6. As Tribunal Secretaries in domestic arbitrations in India, we have had extensive exposure to construction disputes. In a few International Commercial Arbitrations, we have shareholder disputes take center stage. Given your experience in the resolution of Shareholders dispute, both as a counsel and an arbitrator, could you paint us a picture of the fundamental conflicts that come up in such arbitration matters. Are there any books or reference material that you would recommend for the practice of arbitration in shareholder disputes?
A.6. The typical shareholder dispute in which I become involved usually relates to a joint venture between a state entity and a foreign investor in infrastructure projects or the extractive industries. I am not sure that I can recommend books specifically directed to the arbitration of shareholder disputes as of course issues will often depend on the governing law. I would certainly recommend the magisterial general works on arbitration such as Born and the upcoming new editions of Craig, Park & Paulson and Mustill & Boyd.
Q.7. Are there any specifics of arbitral practices that you particularly enjoy? What practices do you employ to engage and keep up with the recent trends in arbitration? Is there any routine you would recommend young lawyers regularly engage in to become better in the field?
A.7. I enjoy the people. It is a shame that that has been impacted by the present pandemic. Hopefully normality will resume soon. Conference and seminars are the best way to keep up-to-date and young lawyers should attend and participate.
Q.8. What would be your word of advice to the readers trying to make it big in the transnational practice of international arbitration and what books and reference material would you want them to read and refer to?
A.8. I am not sure what “make it big” means. I think the answer is not found in books. The advice I give to all young lawyers is to say “yes” to every opportunity to gain experience. There is no such thing as useless experience and you never know where it might lead you.
The Editorial Team at the Arbitration Workshop would like to thank Mr. Black for taking out time from his busy schedule and for sharing his perspectives with us!