A few insights from four of our young partners who are specialists in international arbitration.
Meet the experts
|Garth Duncan, Partner||Chandni Gopal, Partner||Kirsten Wolmarans, Partner||Prathik Mohanlall, Partner|
Garth is a dispute resolution specialist with experience in domestic and international adjudication and arbitration. His practice is versatile, ranging from corporate fraud and corruption investigations to engineering and construction disputes He is a Certified Fraud Examiner (CFE) and has a deep understanding of construction disputes.
According to Legal 500, Garth has a "good work ethic" and is "trustworthy".
Chandni specialises in commercial dispute resolution and has expertise in both domestic and international adjudication and arbitration. She has extensive experience in renewable energy, construction, infrastructure and project finance disputes in Africa and Asia. She was awarded a Fulbright Scholarship and completed an LLM at the University of California, Los Angeles. She was also appointed a law clerk to Justice Edwin Cameron at the Constitutional Court of South Africa.
Kirsten specialises in various aspects of corporate and commercial litigation and arbitration. She has worked on high profile and complex matters. Kirsten has experience in running complex international arbitrations under the rules of various arbitral institutions. She has completed an LLM (International Commercial Arbitration Law), with distinction, at Stockholm University.
Prathik has extensive experience in domestic and international arbitrations, under the auspices of several institutional rules, as well matters before the International Chamber of Commerce's Court of International Arbitration. He has run arbitrations for a variety of clients across a wide spectrum of sectors and industries, and has particular experience in commercial, construction and mining disputes.
How did you become interested in international arbitration?
Garth – I first became interested in international arbitration when we were engaged in a matter in Mozambique. It was thrilling in the sense that we were litigating against a warlord (landlord) construction company owner, in his territory, and were required to equip ourselves from both a legal and a safety perspective.
Chandni – As a candidate attorney, I had the opportunity to work on various cross-border and infrastructure development projects. It became apparent to me that one of the key drivers of economic development is international investment. I have seen first-hand how the effective resolution of disputes through international arbitration has promoted the success of projects for the benefit of local communities. This area of law has undoubtedly made me a more active global citizen.
Kirsten – Most lawyers shudder at the thought of legal proceedings. Not me. It's an exhilarating experience. As a partner in Webber Wentzel, I am afforded the opportunity to run with fascinating cases on domestic and international platforms. Dispute resolution across borders has become a new norm, and international arbitration remains an intricate web of law and practice that requires in-depth understanding. Studying a LLM at Stockholm University in international arbitration strengthened my passion for the subject and gave me the ammunition to fight my clients’ battles on the international stage.
Prathik - I was involved in my first international arbitration when I was an associate, in a dispute involving parties from Tanzania, Mauritius and South Africa. I found the dynamic of an arbitration with parties from several jurisdictions so fascinating that I knew international arbitration would become a focus of my practice.
What makes international arbitrations seated in South Africa different to other popular seats?
Garth – Compared with seats of arbitration such as MIAC and LCIA, South Africa offers convenience (travel, accommodation, availability of arbitration venues) and legal cost advantages that place it on an equal and sometimes superior standing.
What are the key traits that you think every legal counsel should have in an international arbitration?
Garth – The three key traits every legal counsel should have are:
- Competence – significant experience in the matter they are handling.
- Humility – the ability to admit when they require assistance from local counsel, where knowledge of the applicable law is beyond their reach.
- Adaptability – the ability to adapt to argument which is beyond their usual logical script of thought and rationality.
What challenges or developments do you forecast for international commercial arbitration?
Chandni - Several international arbitration organisations are considering the reform of investor-State dispute settlement (ISDS). The alternatives under discussion include reliance on national courts, a multi-tiered regime which would mandate mediation, and even the creation of a Multilateral Investment Court. While it remains to be seen precisely how the ISDS landscape will change, the general sentiment is that it will become significantly more complex. These developments are very exciting!
Kirsten - Different cultures, legal systems and expectations of parties are causing the arbitration community to question whether the current narrow cast of arbitrators represents the best resourcing to resolve disputes. Decision-makers in international disputes should not be cut from the same cloth. Instead, new perspectives and different skills and experience can be served at the decision table by appointing arbitrators who represent the diversity of the arbitration community and its users. As the young practitioners with fresh perspectives, we are best placed to rise to this challenge to address the "diversity deficit".
What is the most important development in international arbitration in recent years?
Chandni - The advent of third-party funding (TPF) has levelled the playing field in international arbitration. A prominent concern with international arbitration proceedings is that they often gives rise to extensive legal costs which may in turn translate into significant financial risk. TPF allows a party to litigation to obtain financial support from a third party. Key arbitral institutes have introduced rules to regulate TPF arrangements which require mandatory disclosure in the interests of fairness and transparency. To me, the significance of TPF arrangements is that they enable developing countries and other under-resourced parties to have their disputes ventilated on an international stage.
Kirsten - There is increasing concern about the length of time taken to resolve a dispute in international arbitration, especially in matters where costs are disproportionate to the risk. Leading arbitral institutions from around the world, including South Africa, are introducing early dismissal procedures into their rules, thus allowing the dismissal of claims or defences which are either manifestly without merit or outside the jurisdiction of the tribunal. If a correctly timed early dismissal application can prevent arbitration from going the full length, it will fulfil the basic objectives of the international arbitration community, further bolstering its appeal for international businesses seeking a swift resolution of disputes.
How do you think the Covid-19 pandemic will have a lasting impact on international arbitration?
Prathik - The use of technology to access witnesses in foreign jurisdictions had, prior to the Covid-19 pandemic, slowly started to become more commonplace in international arbitrations. The pandemic, however, brought about a shift in the traditional thinking that arbitration (and other) hearings had to be in-person. Although physical hearings will eventually become the norm again as the pandemic subsides. I believe that most arbitrations will continue to have virtual elements, whether to accommodate witnesses that are far from the arbitration venue or to increase efficiency by holding pre-arbitration and related meetings.