Interview with an Arbitrator – Russell Thirgood

Russell Thirgood is a Chartered Arbitrator with more than 25 years’ experience in resolving complex, high-value disputes across the construction and infrastructure, energy, natural resources and commercial sectors. He is a member of Arbitra, with an office in St Paul’s, London.

He has conducted cases throughout Europe, Australia, the Pacific, Asia, US, UK, and Middle-East, under some of the key international and domestic arbitral institutional rules. He has been appointed by parties, government and arbitral institutions, including the ICC, SIAC, HKIAC, AAA-ICDR, ACICA. UNCITRAL and Resolution Institute.

Prior to becoming a full-time and independent Arbitrator in 2020, Russell spent more than 20 years at the national Australian law firm McCullough Robertson, where he was partner and Head of Arbitration. He is recognised by leading legal directories as a highly regarded arbitrator with a reputation for sound procedural and substantive decision-making. In 2022, Russell was awarded Australian Arbitrator of the Year at the Australian Law Awards.

We sat down with Russell to discuss some top tips, lessons learned and key takeaways on the road to final award from his years of expertise.

What are your top five tips for running an arbitration case?

It’s been some years since I have run a case as a lawyer and I think the counsel role is a very different mindset to being a member of an arbitral tribunal. Each member of the legal team may have different roles so, from the perspective of the lead lawyer in the team running the case, the top five things I would be thinking about consistently throughout an arbitration case are:

1. Relationship with the client – Disputes are inherently stressful and that stress can find its way into the client and lawyer relationship. In a sense, it often felt like going to war with someone as the stakes could be so high, and so it was very important to develop a deep level of trust. That can take some time to build up through many cups of coffee and acting with and demonstrating integrity, empathy, experience and excellence in every step of that relationship in the broader context of managing the case. I am of the view that “trust” is the currency of business and running cases, as once it is developed, better decisions are made and at the pace that is required in a complex and changing landscape.
2. A motivated and talented team with a clear sense of direction and purpose – The larger cases require a team of lawyers, client representatives and experts all working together. Everyone needs to understand the bigger picture, the case theory and their roles in the case. Like any high-performance team, strong and effective levels of communication and accountability need to exist.
3. Know the detail – Many cases, including large construction disputes, can be factually complicated. The whole arbitral process is designed to stress test a case theory to ensure that it is aligned with what happened. It is vital that the legal team is completely on top of the detail prior to the proceedings being initiated. There are no short cuts here and a strong client relationship is required to facilitate the investment to enable that work to be undertaken.
4. Know (and hopefully have a role in choosing) your tribunal – You can have the perfect case and do everything right in terms of case preparation, but sadly appoint an arbitral tribunal that is not up to the task. So, be as actively involved as your arbitration clause allows you in shaping the formation of a tribunal. I think an arbitrator is a bit like a referee in a sporting match. You want someone who facilitates the process with humility, efficiency, pragmatism and correct decision making, without becoming the focus of it.
5. Risk management – Disputes are risky and that risk tends to grow in time with the build-up and exposure to legal costs and interest. Always consider ways of managing that risk including through keeping open lines of negotiation and exploring processes such as mediation.

What are some pitfalls that you have come across by parties running an arbitration?

I have had a case before me where I was sure one of the parties was over using artificial intelligence in their submissions and communications. Submissions referred extensively to cases, rules and sections of legislation without much overall coherence or alignment with the broader case theory. I also sensed a lack of a deeper understanding of the adversarial process including the ethical obligations that one has in its interactions with a counterparty and the tribunal.

Do you have any advice for the presentation of witness evidence and a witness taking the stand?

I was a witness in a case and the best advice I received was to listen to the question and answer it succinctly and truthfully. It is not the witness’s job to second guess the question or to make submissions in the case. Lawyers play an important role in explaining to a witness their role and ensuring that they fully understand and adhere to that discipline of answering questions truthfully, both in the preparation of witnesses statements and the giving of evidence at the oral hearing.

How would a tribunal prefer expert evidence to be approached?

Every case is different and there are a multitude of processes open to a tribunal and the parties in terms of managing expert evidence that ultimately depend upon the level of complexity that is inherent in the case. I would encourage those involved in arbitrations to read the report handed down in July of this year by the Chartered Institute of Arbitrators in respect to managing party appointed expert evidence. Personally, I have found joint expert reports to be helpful, particularly after experts have been able to meet and discuss the use of common data sets and methodologies. It may also be sensible that experts are asked to provide reports that give opinions on all the various legal and factual scenarios that may be at play.

Tips for effective advocacy?

There is no substitute for doing the hard work and getting on top of the evidence and law at an early stage to ensure that what is brought to the arbitration proceedings is a case theory that has already been rigorously tested internally. That is the most important exercise and after that, one can sensibly and pragmatically move through the arbitral process with a clear sense of purpose.

Do you have any comments on ad hoc v institutional arbitration, and circumstances where one would be preferred over another?

My first 30 or so appointments as an arbitrator were ad hoc and sole appointments. The benefit of that for the development of my expertise was that I needed to deploy and refine a complete range of skills to manage the entire process by myself. I now enjoy a mix of ad hoc and institutional appointments. I enjoy working with colleagues from arbitral institutions and co-arbitrators as we share the common goal of achieving a fair and efficient resolution for the parties.  I think it is generally true that “three heads are better than one” so if the case warrants it, I think I tribunal of three can be a wise investment.

Tips in choosing a specific arbitrator?

One of the challenges in this space is that much of an arbitrator’s work remains confidential, and there is no real visibility of one’s product as there is for court judgments. I suspect that means that it really might come down to word of mouth as to how a particular arbitrator is performing and whether they are devoting the time and effort that is required to do a good job, and whether someone has the necessary experience. There is a lot that can go wrong in an arbitration and the consequences of that can be drastic, so it really is a very important decision.

You were the partner running an arbitration defence on a mega construction and resources infrastructure arbitration that ran for 9 years. When it became clear that the matter was going to be a protracted arbitration, how did you develop your strategy?

With that matter, I knew after speaking with various witnesses and getting on top of the facts prior to the commencement of the arbitration that there was no way that our counterparty could settle the dispute. Accordingly, to de-risk the arbitration from a costs point of view, I advised my client to make a generous, sealed offer to settle at the first opportunity. Fortunately, my client listened to that advice, so it was comforting to know throughout the process that we had that in place from a cost protection point of view. After that, a lot of my work involved ensuring the team, including client and lawyers, worked faithfully according to the strategy and case theory that had been put in place at the outset (after rigorously analysing the evidence and law).

What else can be done early on during the arbitration process in a strategic sense that can benefit a party later during the process?

In the big cases, I would like to have a separate team set up with the sole purpose of negotiating with the other side and exploring a win-win commercial settlement. I find that the mindset of a negotiator is quite different to the mindset of counsel who is running the case. This strategy produced some unexpected but welcomed outcomes over the years, which may not have been foreseen to the lawyers that were fighting the battle in the trenches.

Russell’s insights reinforce several key themes that underpin successful arbitrations, including meticulous preparation, strong client relationships, strategy and a clear focus on the broader objectives of the case.

Beale & Co regularly support clients in arbitrations across a wide range of jurisdictions, often arising from technically complex projects. If you have any questions regarding the information discussed in this interview, or require specialist advice, please contact our Heads of International Arbitration, Claire Miller and David Nitek or Russell Thirgood on russell@thirgoodarb.com