Douglas Jones AO

Sydney Arbitration Chambers; Toronto Arbitration Chambers; Atkin Chambers

Sydney, Toronto, London www.dougjones.info

dougjones@dougjones.info Tel: +61 2 9137 6652

Biography

Doug Jones AO is a leading independent international commercial and investor-state arbitrator with over 40 years’ prior experience as an international transactional and disputes project lawyer. Doug is a door tenant at Atkin Chambers London and has Chambers in Sydney and Toronto. Doug is also an International Judge of the Singapore International Commercial Court.

How has the relationship between arbitrators and parties developed over your career? How might this affect tribunals?

When one speaks about the relationship between arbitrators and parties, what is normally referred to is the relationship between arbitrators and counsel, rather than with the actual parties. My impression is that over time, there has been increasing engagement, as there should be, between arbitrators and parties’ counsel but the involvement of parties themselves in proceedings has somewhat declined. This has, of course, been exacerbated by virtual proceedings dictated by the pandemic where one sees only briefly, images of those who might be attending as party representatives. It is really important for arbitrators to appreciate that what they are saying is being absorbed by those who represent parties, and there is less of a chance to observe this reaction in virtual proceedings. In my view, this question of there being an opportunity for parties themselves to understand and appreciate the process and react during both procedural and evidentiary hearings is critical to the health and development of international arbitration and is something on which arbitrators, counsel and the parties themselves need to work hard.

You have recently expressed concerns over the “de-lawyering” of Russian parties and its impact on the rule of law. How will the ongoing sanctions continue to affect Russian-related construction projects and arbitration?

In my view there has been a lack of any real debate in the political discussions of sanctions on Russian parties, and others facing sanctions, as to their impact on access to justice and the maintenance of the rule of law. It is critical, both for the benefit of the parties themselves, including, of course, those who are not sanctioned, and for the working of international commerce that dispute resolution processes be maintained in times of international tension, and that the capacity of parties to participate properly in the administration of the rule of law internationally be recognised. After all, the founders of the ICC (post World War One) called themselves “the merchants of peace”. The capacity of lawyers, experts and arbitrators to continue to participate in international dispute resolution processes has not been debated separately from the imposition of sanctions more generally. The potential negative impact of sanctions on the dispute resolution process and its contribution to world peace must be carefully considered.

As a result of the shift towards virtual arbitration, would you say that some of the London principles are less of a priority for arbitration centres looking to further their development? If so, how and why have they changed?

The London Principles established by the Chartered Institute of Arbitrators during its centenary in 2015, are an exceptionally useful guide for those who seek to maintain and develop arbitral seats for the benefit of the international arbitration process. However, several relate to physical issues such as the safety of the seat, which have become far less relevant in a virtual world where the issues are more related to ensuring effective virtual connections and hearing processes that are efficient for all participants. My experience is that physical hearings have now largely resumed; however, assuming that one is proceeding virtually, certain aspects of the London Principles such as local courts’ support for arbitration and the existence within the jurisdictions of experienced and expert counsel, as contained in Principles One–Five, for example, will be increasingly important because they are divorced from physical considerations. I think there is an opportunity for those in existing and aspiring seats to focus on these aspects of the London Principles.

A common complaint about international commercial arbitration is that the process is no longer efficient. What can arbitrators do to ensure that the arbitration proceeds smoothly and without unnecessary delay?

The debate about the efficiency and cost of international arbitration is neither new nor less relevant as time passes. All legal processes, domestic and international,

must ensure that the adoption of procedure does not become an end in itself. Arbitrators must keep a laser focus on innovation and reform in order to maintain efficiency, expedition, fairness and economy. Thus, accepting existing processes without question should be avoided, although predictability and fairness themselves are benchmarks for effectiveness.

Many arbitral awards are starting to end up back in court for enforcement proceedings. Does arbitration have an enforcement issue, and how could this be addressed if so?

There are two aspects to this issue. The first is the challenge of arbitral awards in their seat and the second is the enforcement of arbitral awards outside the seat. In relation to the first issue, it is critical that the courts at the seat provide efficient opportunities for those wishing to challenge awards and ensure all parties have certainty as quickly as possible. The second issue of enforcement outside the seat is, of course, one of the reasons international arbitration dominates international dispute resolution. It is important for the very many countries that have acceded to the New York Convention to be astute in ensuring that their processes for enforcement are clear, expeditious and accessible. Statistics on the payment of awards without the need for enforcement proceedings are not readily available but my impression is that awards where enforcement is resisted represent a small proportion of awards in international arbitration.

How would you summarise the philosophy behind your role as arbitrator?

The arbitrator’s role is to be as proactive as the parties wish and ensure that the parties themselves are comfortable with the process. An arbitrator should be able to devise, with the parties, processes suitable to the dispute and at the end of a fair process, deliver an enforceable outcome.

Peers and clients say: “Doug has in-depth knowledge regarding construction-related issues” “He is an effective chair-arbitrator who is always in full command of the proceedings”