You were the Deputy Chief Justice of the DIFC Court in Dubai until May 2013. What types of cases are currently before the DIFC Courts and with the increase of international business do you believe this is going to lead to an explosion of cases being brought before the court?
The DIFC has seen a multitude of disputes before it since its inception, but most notably there have been a heavy number of disputes stemming around contracts for the sale and purchase of real estate, which is a major currency of the region. There has also been a steady increase in cases since the recovery from the financial crisis of five years ago. That which stalled, for example, the large scale construction in the Gulf and collapsed the value of properties – many of which were sold off-plan – had an impact on individuals and investors, which has resulted in disputes in some cases in respect of negligent financial advice given to parties and also in termination of employment contracts and resulting claims for wrongful dismissal. The DIFC Court amended its rules in 2012 to allow parties unconnected with the DIFC to contract into the jurisdiction of the DIFC Court and that will certainly bring more cases to the court. The court is being seen by many to be much more user friendly in its approach than many local courts in the Gulf area and the quality of the judiciary sitting in the DIFC has laid an excellent foundation for the court’s future.
How do you see the development of international arbitration?
It is a field of dispute resolution which is only going to get bigger as time goes by. It has been remarkable for a former commercial judge to move into arbitration, which has included so many of the biggest international disputes in the world. Commercial litigation in the last 20 years has been marginalised, as it has been arbitration almost all the way. A huge draw to international arbitration has been the case of enforcement of arbitral awards, as opposed to enforcing a judgment from a UK court, which in some jurisdictions you may be difficult or even impossible. The confidentiality and privacy of the arbitral process also remain some of the key factors of its attraction. In addition to this, the parties also get to select their appointed arbitrator and while at least in English arbitrations a party-appointed arbitrator will approach the role as entirely impartial and independent, there remains to some parties a sense of comfort that their appointed arbitrator has a special understanding of their case.
You are regularly in the Far East conducting large scale international arbitrations. Singapore has positioned itself well as a neutral third party venue for resolving disputes between parties from different jurisdictions. With the introduction of the Singapore International Commercial Court (SICC), do you feel this will continue to leverage their reputation?
Singapore has over the years worked incredibly hard to attract work to its courts and to arbitration. With huge support from the government and Ministry of Law, it has positioned itself well as a hub of international disputes in the Asia Pacific Region. The opening of the SICC is a very interesting adventure, which is being looked at by many with great anticipation. It is likely to attract work from the surrounding regions such as Indonesia, Malaysia, Philippines and Taiwan of cases of a commercial nature where there may be an unpredictable outcome before the local courts. The application of general principles and procedure of the common law will make it similar in many ways to the London Commercial Court. It will be interesting to see how Singapore will approach selection of the judiciary which, like that of the DIFC Court, is intended to be drawn from different common law jurisdictions, as well as from Singapore. Such judges will have great expertise in the law of international trade and their varied background should prove attractive to parties in litigation. If the SICC approaches its work with the same enthusiasm and efficiency as the Singapore International Arbitration Centre, then I am sure it will be successful, but only time will tell.
What is the best advice you have been given in your illustrious career either at the Bar, on the bench, or as an arbitrator?
One experienced arbitrator, when I first retired from the bench, said to me “always turn up at arbitrations in a formal suit”. I have always followed that advice. Giving the right impression to the parties involved is important. You must show you are taking their dispute seriously. The conduct of international arbitrations is extremely expensive – even for very short hearings for which the parties may fly into London from all over the world. The system needs to be user friendly and seen as scrupulously fair and I’ve always felt that although it should not have the total formality of the Commercial Court, an arbitral tribunal has got to show that it is striving for the right answer every minute of the hearing.
What advice would you give to junior barristers/lawyers commencing their career in the law?
A lot of junior barristers and those starting off as trainee solicitors have very distinguished academic careers which usually consist of an encyclopedic grasp of law and cases. That said, what really matters, is to have complete command of the necessary findings of fact. The devil is in the detail and the facts are the detail.
How do you relax?
Two places. One, in my garden which is far too big for any normal or sane person to believe they could control. I am sufficiently insane to believe I can. The other is the Island of Siphnos in Greece. It is a very different lifestyle: trying to get plants to grow in individual flower pots once they’ve dried out.
Hewetson Shah partners, Guy Hewetson and Mat Kesbey, interviewed Sir Anthony Colman.