Anthony Sinclair specialises in international commercial arbitration, investment treaty arbitration and public international law. His work spans a broad range of industry sectors, with particular focus on the oil and gas, energy and mining, telecommunications, infrastructure and utilities sectors, especially in emerging markets. Anthony qualified as a barrister and solicitor in New Zealand, in 1999, and re-qualified as a solicitor in England, in 2006. He became a partner in the international arbitration group of Allen & Overy LLP in 2011, before joining Quinn Emanuel Urquhart & Sullivan LLP in 2012. He has an LLM and a PhD in international law from Cambridge University, UK.

How does your role as arbitrator enhance your approach when acting as counsel and vice versa?

In a physical hearing, the attentive arbitrator sees everything. Every grimace or stifled giggle, every dirty look across the counsel benches, the frantic finger-tapping, the hastily scribbled suggestion, the yellow post-it note urgently plastered by lead counsel’s elbow. And of course, everything the witness says and does. As counsel, I remind myself and my team that everything I do in the hearing room is being observed and assessed.

I find drafting awards to be an intellectual pleasure, but it is labour-intensive and time-consuming. As counsel, I always try to bear in mind the need to give arbitrators every assistance possible with this process, from text-searchable and copy/paste-able briefs and exhibits, to hyper-linked submissions, and well signposted and plainly drafted arguments. All things being equal, a shorter, more incisive submission is likely to be better received by arbitrators than a longer, more detailed, one.

What are the advantages and challenges of having a global practice?

When building a case, I pride myself on getting boots on the ground. I attend meetings with the client, witnesses and local counsel in person, wherever possible, wherever they may be located. As my practice is global, in years gone by I have travelled a lot. That is of course a challenge. But face-to-face interactions, and time spent with the team outside formal meetings, have proved invaluable to me in developing a full appreciation of my clients’ businesses and the issues in dispute, as well as building trusted professional relationships and friendships with local counsel. This has been a feature of my practice I have enjoyed enormously, and one I do hope returns post-pandemic.

To what extent should more be done to improve the transparency of arbitration proceedings?

Transparency has its virtues, but practitioners should not presume to be prescriptive about the need for it. After all, it is the parties’ arbitration, and if the parties require or prefer confidentiality, this must be respected and upheld save where the law compels otherwise. There are many legitimate reasons why parties, in all forms of arbitration, may prefer to keep their disputes out of the public eye.

An increasingly hot topic in arbitration at the moment is the use of AI in proceedings. What impact is this technology having on arbitration practice?

Among the arbitral community, to date, there is little experience with, or appreciation of the applications of, artificial intelligence. I predict early adoption will focus on the selection of arbitrators and experts, translation of documents, and locating and tracing assets in aid of enforcement. Short-listing arbitrators based on a machine-driven intelligent assessment of their training, track record and possible inclinations, is already upon us, and while still in its infancy, it is likely to become more and more effective. For many counsel, who pride themselves in the “art” of selecting arbitrators, this will be a disconcerting challenge.

To what extent can virtual hearings be relied on to decide high-stakes multibillion-dollar cases between parties?

Virtual hearings present counsel with a classic “FOMO” dilemma. The fear of missing out on unearthing, exposing, or showcasing a critical element that may be decisive to the decision. But the conditions are the same, in principle, for each side and irrespective of the value in dispute, so it will be an exceptional case that one party is inevitably disadvantaged in the presentation of its case.

What steps do you think need to be taken in order to improve diversity in arbitration?

Above all, practitioners should look to the real world and remember that our clients are diverse. That is certainly the case in my practice. Our clients expect their counsel, and the experts and arbitrators they appoint, to be diverse, like them, and to represent the markets in which they operate. It is the absence of diversity, be it in a counsel team, shortlist of experts, or arbitral tribunal, that is abnormal in, the real world, and certain to be sub-optimal.

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

Keep on reading. In legal practice, this means read the primary sources for yourself. Don’t rely on the summaries of others, otherwise, you will struggle to ever form your own ideas.