Jonathan Sutcliffe

K&L Gates LLP

Dubai www.klgates.com

jonathan.sutcliffe@klgates.com Tel: +54 582 4604

Biography

Jonathan is a partner in K&L Gates’ arbitration group. Jonathan has significant experience across international arbitration, ADR, and litigation matters in the energy, construction, hospitality, real estate, defence, insurance, joint venture and film sectors, and on investor-state disputes. Jonathan sits regularly as an arbitrator. Jonathan is qualified in England and Wales, and New York. He is recommended by leading legal guides, including Chambers, The Legal 500, and The International Who’s Who of Commercial Arbitration.

Very interesting, fun, accidental. In 1997, when I had just qualified at Freshfields, I was given an arbitration to run when a more senior associate went on secondment. After that, I was in the arbitration group (no one ever asked if I wanted to be!). Since then, I have worked for some great people, with great colleagues, on fascinating and high-profile arbitrations, which have taken me round the world in terms of arbitration institutions, clients, governing laws and hearings. I have worked in London, New York, Houston and Dubai.

There have been reported difficulties in the supply chain in the Middle East for global projects. How has this impacted arbitration matters?

The cost of construction materials, for example steel and other metals, has risen significantly. Regarding international shipping, the lack of available container ships in the right location was well publicised. International trade tariffs and regional embargoes have been an issue. Supply chain difficulties such as these can lead to increased costs, delay and cancelation of projects, which may ultimately feed through into claims in arbitrations concerning affected projects. Whether such claims succeed depends on the contractual apportionment for these types of risks, as well as any mandatory provisions of the governing law.

Could the rise of virtual hearings lead to a greater mixing of different legal systems and arbitration institutions?

International arbitration already results in the mixing of different legal systems, through the representation of parties by lawyers from different jurisdictions and legal cultures. This has resulted in a tendency towards homogenisation of certain practices and procedures, such as document production, written witness statements and expert reports, where the IBA Rules on taking of evidence in international arbitration, for example, could be said to represent an ‘accepted’ compromise between legal systems. Virtual hearings will further cement the ‘mixing’, as it has become apparent that arbitration hearings can be conducted virtually quite successfully, with clients, legal teams, experts and witnesses all present in different jurisdictions and places.

In what ways have you noticed tribunals becoming more sophisticated and entertaining a greater variety of techniques in proceedings?

There is increasing use of techniques such as reducing the number of submissions, page limits, closer control of document production, interim hearings, video conferencing / virtual hearings, electronic communication and bundles, and ‘chess clock’ time distribution for hearings. Generally, there is more robustness in applying the powers available in arbitration rules, proactive first organisational meetings, and careful consideration of narrowing the issues and motions to resolve certain aspects of the case at an early stage. An interesting technique which could be used more often is the mid-arbitration review, involving the parties and the arbitrators, to focus on the key issues in dispute.

How have the new ICC rules impacted commercial arbitration practice?

It’s probably too early to tell the impact of the ICC Rules 2021, as they have only been in force just over a year (at the time of writing). Among the most significant changes in the new rules are (i) the tribunal’s ability to exclude new party representatives to avoid a conflict of interest of an arbitrator, (ii) the requirement to disclose the involvement of third-party funders (which have an economic interest in the outcome of the arbitration), which is meant to enable arbitrators to make appropriate disclosures, to protect independence and impartiality and (iii) the tribunal’s power to order a virtual hearing even if the parties do not consent, thus facilitating virtual arbitrations. There is a drive to limit the vast amounts of paper an international arbitration can generate, with exhibit sets and hearing bundles often being submitted electronically only. Some arbitrations are now completely paperless. Virtual hearings have reinforced this trend, as they require electronic hearing bundles, or at least the ability to share documents on screen.

A notable contribution is the Campaign for Greener Arbitrations, started by my former colleague Lucy Greenwood, which aims to reduce the carbon footprint of the arbitration community. This includes the Green Pledge, which includes pledges to correspond electronically, avoid printing and videoconference instead of travel, for example.

How big is the issue of geographic exclusion in arbitration (ie, where small states don’t have the infrastructure to participate effectively in arbitration proceedings)? How could this be effectively addressed?

The pull for law firms to establish brand presence in ISDS keeps strengthening and the terms on which law firms are willing to take on defence mandates could be said to operate to level the playing field. There is also the question of the tribunal’s role in levelling the playing field, in giving more time, being more willing to trim the issues after bifurcation so the state is not fighting on unnecessary fronts and awarding costs if claims are dismissed at an early stage.

What is the best piece of advice you’ve ever received?

Never give up, keep going and keep trying. Determination and persistence will see you through. Most importantly, be kind and gentle to others in your dealings with them. A specific application of this is never to ‘burn bridges’ with your opposition; be civil (while professionally fighting your client’s corner) – the arbitration community is a small world, and you never know when you might run into them again, or need a boon from them in the future.

Peers and clients say: “He is very careful, thorough and hard-working” “He has a keen mind and good strategic sense” “I was very impressed with his handling of a case as an international arbitrator” “A star” “He is very user friendly to work with”