Professor Doug Jones AO is a leading independent international commercial and investor-state arbitrator with over 40 years’ experience as an international transactional and disputes project lawyer. He has been involved in over 170 arbitrations, spanning over 30 jurisdictions around the world. Doug has chambers in Sydney and Toronto, and is a door tenant at Atkin Chambers in London. He is also an international judge of the Singapore International Commercial Court. 

What do you enjoy the most about sitting as an arbitrator?

It is an exceptional privilege to have the responsibility of an arbitrator, either party-appointed or presiding. Enjoyment of the task can be divided into two broad areas, namely the intellectual challenge of dealing with the issues in contention, and the procedural and interpersonal aspect of the process. So far as the former is concerned, the variety of industries and legal systems applicable to the resolution of issues in contention provides significant enjoyable intellectual challenges.  Particularly fascinating is the comparative law aspect of disputes seated in a variety of jurisdictions and governed by a variety of laws. So far as the second area is concerned, the capacity to devise procedures appropriate to each arbitration is one of the great strengths of the international arbitral process and applying imagination and discipline to mediating with counsel and the parties a process which is regarded by all as mutually satisfactory and fair is both challenging and satisfying.

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

I believe there is an increasing awareness of the need to adjust techniques in arbitral proceedings to suit the particular needs of the dispute involved in each arbitration. However, I believe more can be done in this regard. Clearly, some commonality between procedures from arbitration to arbitration is desirable in terms of predictability for counsel as to what they can expect, but adopting processes from past proceedings without critical thought is more prevalent than it should be. It is very important for arbitrators to bring an open mind to the negotiation with parties and counsel of processes, which are likely to lead to a fair, expeditious and economical resolution of each arbitration.

Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree?

It certainly is one of the less certain areas of international arbitral practice. This is because the hard work done by the IBA in establishing its Guidelines on Conflicts of Interest seems to have become increasingly less relevant as each arbitral institution seeks to impose its own standards regarding disclosure. This is inevitably complicated also by the variation in local legal principles applicable to the issues of independence and disclosure in different jurisdictions. Transparency is key to the maintenance of arbitral processes in which the confidence of parties in the process must be preserved, and I am of the view that, when in doubt, disclose. In this sense, I do not accept that this approach can be characterised as restrictive. An unresolved issue in this area is the availability from the internet and social media of very substantial material, accessible to parties and counsel, about the activities of potential arbitrators. A balance needs to be established between party and counsel due diligence, and arbitrators’ duties of disclosure.

What further steps can be taken to ensure that arbitration professionals are more comfortable using arbitration hosting platforms and other technology increasingly used in the space?

Understanding the technology that supports arbitration is an important skill set for both counsel and arbitrators, so staying abreast of fast-moving, technological developments is critical to successful advocacy and adjudication. It would be helpful if arbitral institutions provided some assistance in understanding the range of options available, and disseminated information about technological developments as they occur.

What advice would you give to young practitioners aspiring to one day be in your position?

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There is little doubt that experience in international arbitration derived from counsel work and institutional case administration is an essential stepping stone for young practitioners looking to act as arbitrators. My own pathway to being a full-time arbitrator was through advocacy practice, combined with a long-standing involvement in the development of arbitral practice by institutions. It is also of great value to work with mentors and learn by their example, something which is available in a number of roles, including as counsel, tribunal secretary, and in institutional case administration. It must also be remembered that, although international arbitration is itself a process, it serves to provide an efficient means of dispute resolution for many industries, and an understanding of the industries from which disputes emerge is an important part of the development of the skill set and experience which makes a good arbitrator.