Exit stage right: The remarkable career of Sir David Williams KC

Barbara Relph*

The last act of Sir David Williams KC’s legal career was unsurprisingly stunning – and a fine example of what we have come to expect from him. In late March, the ICC tribunal of which Sir David was President concluded a decade-long arbitral dispute between Iraq and Turkey over crude oil exports from the semi-autonomous Kurdistan region and awarded Iraq almost US$1.5 billion. 1

There is nothing like ending on a high note.

Sir David Williams KC

The average student

For a man who described his school days as “average”, how did this happen? First, we need to go back to the beginning. Sir David’s father was a publican, owning the Station Hotel in Anzac Avenue. Licensing regulations at the time meant he spent a lot on legal fees, and David’s father “decided” (with little consultation) that his two sons seek to become lawyers, despite an apparent lack of academic acumen in the young David’s case. That lack was evidenced when he failed to pass the University Entrance exam. He had to sit for it a second time. His house master at Mt Albert Grammar School even went so far as to tell the 16 year old David’s parents that, based on David’s academic results to date, he would be better off joining a trade, say plumbing, or maybe drain-laying. Fortunately for the legal world, Sir David did not take that advice!

Having convinced the University of Auckland that he was a suitable candidate to study law, Sir David found the motivation he had been lacking through three extraordinary lecturers in History (Keith Sinclair), Political Science (Robert Chapman) and English (John Reid). Towards the end of his undergraduate degree, Sir David and a small group of fellow students habitually congregated at the Station Hotel to share an underage beer under the watchful eye of Dad. No larrikinism on his watch.

On one such evening, Sir David and his buddies noted a rather formally dressed stranger in military attire having a quiet drink alone at the house bar. Striking up a conversation, it turned out that this man was an American lawyer doing military service in Japan. He had been sent to New Zealand as the escort for a US Airforce group and had been advised that the Station Hotel was the best place for a drink in mid-1960s downtown Auckland on a Friday night. A very lucky chance encounter, as a chat over a beer led to a lasting friendship that also inspired Sir David’s international academic career.

Immediately taking the advice of the random stranger to apply for as many American universities as he could, Sir David received many rejections, with the exception of Harvard. At his interview on arrival at Harvard Law School, Sir David was asked if he would like to know why he was accepted. He did. It was because Harvard likes to have international representation in every year group and no one else had applied from New Zealand or Australia that year. Sir David claims that Harvard was not much impressed by his grades, but his role as president of the Law Students’ Association may have helped.

Sir David describes his time at Harvard as a fantastic experience, and the calibre of teachers was breathtaking. For example, Constitutional Law was taught by Archibald Cox, an acknowledged authority on the subject. Cox had served as Solicitor-General under President John F. Kennedy, and was later appointed as Special Prosecutor of former President Richard Nixon over the Watergate scandal. Sir David also describes the hefty casebooks which came with every course. When International Law lecturer Richard Baxter – then a judge of the ICJ at the Hague – announced there was no casebook for this course, most students rejoiced. Sir David recalls Baxter following this announcement with the slightly disconcerting statement that, “I am only going to refer to one case – the Anglo Norwegian fisheries case in the International Court of Justice. It’s all you need to know about international law. Any questions?”

The next piece of luck was his application for a clerkship position advertised on the Harvard student noticeboard. David applied and, to his surprise, was accepted for a clerkship at the prestigious firm of Ropes & Gray. Why would an American firm want a New Zealand graduate? Again, David was asked if he wanted to know why he was accepted for the role. With some trepidation given past experience with such a question, he did. The admissions partner said that years earlier a New Zealand battleship had been in port and the partner extended hospitality to some of the officers from the ship. One was New Zealand lawyer Gordon Bisson (later Sir Gordon Bisson, judge of the Court of Appeal of New Zealand) with whom the partner had maintained a friendship. He asked Mr Bisson to carry out research into David’s character. It turns out David was a sufficiently upstanding individual, and based on this, and the partner’s fondness for New Zealand, he got the job.

Climbing the law firm ladder

On returning to New Zealand, Sir David’s stint at Harvard secured him a place at Russell McVeagh. That firm was working through a metamorphosis towards a more American approach which targeted commercial business and commercial litigation. He describes this as a transformative time, bringing together his American study and US law firm practice.

In 1989 Sir David was retained on two international commercial arbitration cases, which later became well-known in New Zealand. These cases were his first experience in this arena. The first was CBI NZ Ltd v Badger Chiyoda 2 which involved an ICC arbitration clause. The second, AG v Mobil Oil NZ, 3 involved and International Centre for Settlement of Investment Disputes arbitration and the Arbitration (International Investment Disputes) Act 1979.

As leader of the litigation department at Russell McVeagh for 17 years, Sir David was involved in many other high profile and international cases. Often working with leading QCs including, on one occasion, Jonathan Sumption QC in the Privy Council, this international experience greatly assisted Sir David’s rise in the legal world, worldwide.

Defender of the New Zealand environment

While at Russell McVeagh, Sir David took on the role of part-time lecturer at his alma mater where North American Jack Northey was now Dean of Law. Sharing a passion for things American, Northey and Sir David quickly formed a close relationship. When visiting lecturer and expert in environmental litigation Charles Wurster arrived at the University of Auckland from New York University, Sir David’s passion for the environment was ignited. Charles Wurster was also a leader of the Environmental Defence Fund which had brought litigation to persuade federal and state governments to ban DDT, an insecticide which became infamous for its harmful environmental impact.

This chance connection led to Sir David setting up – with the help of other Russell McVeagh lawyers, notably Andrew Brown KC – the Environmental Defence Society to help protect New Zealand’s unique natural environment. At the time, legal regimes to protect the environment were being established and the Environment Court was in its infancy. With no cohesive text on the subject, Sir David took a sabbatical at the University of Virginia Law School and wrote the inaugural text on the subject. This book has continued to expand and evolve and is now in its 7th edition.

Sir David notes, “The recently formed Lawyers for Climate Action NZ Inc seems to be the Environmental Defence Society ‘writ large’. It is in a different league to EDS, focusing on educating society and the government about the future problems coming down the road, while EDS attended at the somewhat more micro level to local instances of environmental damage.”

Natural progression meant appointment as Judge of the High Court at Auckland where Sir David spent two years. His resignation was due to his unsuitability for the extensive workload on criminal cases where the sordid details of criminal offending were too much for him. This was not to be the crowning glory of this career, although it was invaluable in that this experience opened the judicial door.

This, and his passion for environmental law brought Sir David to the final stage of his career, international arbitration. “I guess it was just good luck for me that environmental damage was brought to a head, driven by the US, at this time in my career. My judicial experience along with my established path in environmental advocacy and international experience early in my career all pointed in the same direction: arbitrating environmental law.” And so this dynamic and intensely interesting period of Sir David’s life began.

Many people cite arbitration as a solution for access to justice. On this, Sir David says, “Arbitration is definitely a solution, but it is a voluntary and private process, requiring two parties to consent. Consent is the crucial sticking point, and it would be unthinkable to suddenly announce that some classes of cases would no longer be heard in court and must be arbitrated.”

Sir David's international arbitration experience covers commercial arbitration, investment treaty arbitration, and the Court of Arbitration for Sport (CAS) based in Lausanne, Sir David recalls an important case in which he was involved, exposing so-called "doping" in the Tour de France.

His combined experience culminated in Sir David’s appointment to the Cook Islands High Court and Court of Appeal, a role which has continued for 20 years. It is necessary in such a small country to appoint external judges, simply to ensure independence and Sir David has thoroughly enjoyed this aspect of his judicial career. “The appellate role is very interesting, with a wide variety of cases conducted in a civilized and overall pleasant manner.” He has recently stepped down from his role as President of the Cook Islands Court, and his contribution to the Cook Islands’ Courts will soon be honoured with flights booked to attend a farewell sitting of the Court later this year, organised by his successor Sir Douglas White KC.

The final chapter

Back to Iraq and Turkey, the final case in the final chapter of Sir David’s illustrious career. This was a State-to-State case so many of the details are in the public domain, allowing Sir David to discuss the case. Sir David boils the case down to its essence, saying that Iraq and Turkey jointly agreed to build a pipeline to carry Iraqi oil to a port in Turkey where it would be loaded and sold. The Kurds in Northern Iraq built their own connecting pipeline and entered into a private deal with Turkey to transport Kurdish oil which Iraq said breached the pipeline agreement between Turkey and Iraq. So, it was essentially a contract dispute, but one involving complex issues of international law and where Iraq claimed around US$30 billion in damages from Turkey. In the end, it took nine years to reach a conclusion, partly due to the untimely passing of two of the original tribunal members. The ICC Tribunal which Sir David chaired awarded Iraq almost US$1.5 billion in damages after set off of monies awarded to Turkey for counterclaims.

David has been an ambassador for New Zealand in international arbitration in many forums including the International Court of Arbitration in Paris, the London Court of International Arbitration. He was a member of the committee that produced the seminal IBA Guidelines on Conflicts of Interest in International Arbitration and a member of the governing board of the International Council for Commercial Arbitration (ICCA). In 2018, he helped to secure a Queenstown event as part of ICCA’s bi-annual international congress, attracting some of the biggest names in international arbitration to these shores.

Reflection

In all, Sir David has spent 58 years in law, in many capacities: a law firm partner, an academic, an environmental advocate, a judge in New Zealand, the Cook Islands and the Dubai International Financial Centre, and an international arbitrator sitting on tribunals deciding billion dollar disputes. He was knighted in the 2017 New Year Honours for his outstanding services to international law and international arbitration.

Throughout his career, Sir David has mentored countless law students and young lawyers who have gone on to greater things, a stellar example of whom is Dr Anna Kirk. A fellow member of Bankside Chambers, Dr Kirk has worked with Sir David for 12 years and is tracking in his footsteps as New Zealand’s member of the International Court of Arbitration, Paris.

Sir David Williams and Dr Anna Kirk

Sir David has been an ambassador for New Zealand in international arbitration in many forums including the International Court of Arbitration in Paris, the London Court of Internation Arbitration. He was a member of the committee that produced the seminal IBA Guidelines on Conflicts of Interest in International Arbitration and a member of the governing board of the International Council for Commercial Arbitration (ICCA). In 2018, he helped to secure a Queenstown event as part of ICCA's bi-annual international congress, attracting some of the biggest names in international arbitration to these shores.

Recently, Dr Kirk and eight other barristers from Bankside Chambers established a new office in Singapore to promote their work in international arbitration and similar fields. This follows Sir David’s lead who first established a Bankside office in Singapore in 2011. Several barristers involved with the venture –including Dr Simon Foote KC, Sam Carey and Lauren Lindsay – have worked closely with Sir David in the past.

Sir David’s legacy is not confined to New Zealand's territorial limits. Many New Zealanders working in international arbitration at large international firms or top English barristers’ chambers have had some connection with Sir David over the years. From James Hosking in New York to James Herbert in Paris – and too many to name in London – all were introduced to international arbitration by Sir David. In his typically gracious manner, Sir David pays tribute to all those young lawyers who worked with him as arbitral clerks and who greatly assisted him over the years.

Sir David makes no secret of the value of his New Zealand status in advancing his career. By that, he means New Zealand’s international reputation for honesty and integrity. “New Zealand’s reputation as a small, democratic, non-corrupt, non-threatening country has taken me a long way.”

There seem to have been many random lucky chances during his career, but is it really luck? With his enquiring mind, Sir David has sought and pursued opportunities and followed his passions to the nth degree. In his retirement, we are unlikely to see Sir David relaxing at the beach for very long. Rather, alongside Lady Gail, he will continue to pursue his off duty passions for family and environmental protection, reflecting on the development of international arbitration as well as a life lived to the max.

* Barbara Relph is a freelance writer and proofreader –www.barbararelph.com

REFERENCES

1 Global Arbitration Review https://globalarbitrationreview.com/article/iraq-and-turkey-hail-award-in-multibillion-oil-dispute reporting on Republic of Iraq v Republic of Turkey and BOTAS Petroleum Pipeline Corporation (ICC Case No. 20273)

2 CBI New Zealand Ltd v Badger Chiyoda [1989] 2 NZLR 669, CA

3 Attorney-General v Mobil Oil NZ Ltd [1989] 2 NZLR 649, HC