Level 10, Aorangi House, 85 Molesworth Street
1530, Wellington 6140, New Zealand
Peers and clients say:
“Rob is one of the most effective advocates of his generation”
"Rob is a master at reading cases and interpreting legal text"
"He is formidable on his feet and quick to read the hearing room"
"He has a strong work ethic and excellent client service"
Robert Kirkness is recognised as an outstanding advocate. He has appeared as counsel for commercial clients, states and state agencies in some of the most complex and high-profile matters submitted to international arbitration. He maintains an active practice as counsel before domestic courts and has appeared before the appellate courts in a number of leading constitutional and human rights law cases. Robert also serves as arbitrator in international commercial disputes.
What motivated you to specialise in dispute resolution?
I specialised in dispute resolution because I enjoy written and oral advocacy more than most areas of legal practice. I am drawn to international arbitration, because it is used to resolve some of the most interesting disputes in the world and is practised by lawyers from a wide range of legal and cultural backgrounds. But the core skills are the same as those used in other forms of adjudication even if the stage can sometimes be grander than most. International arbitration requires the application of law to facts; it is not a mystical endeavour.
What do clients look for in an effective arbitrator?
Clients want someone who diligently and respectfully reviews the materials so that they can be confident their positions on the different issues in dispute have been understood, someone who efficiently case manages the arbitration and someone who applies the applicable legal norms to the facts to resolve the parties’ dispute as promptly and efficiently as the circumstances permit. There are many other attributes that clients may look for in different arbitrations but those listed above set the baseline for what clients expect from an effective arbitrator.
How has the relationship between arbitrators and parties developed over your career? How might this affect tribunals?
The core of the relationship remains the same as it has throughout my career: arbitrators give effect to the parties’ choice to resolve their dispute through arbitration. They serve the parties. One more recent trend is that some parties have become proactive about developing a deeper and more representative pool of arbitrators. That is a welcome development.
In what ways is arbitration becoming greener? Do clients also have a role to play in this transformation?
Yes, clients/users ultimately need to drive that transformation. As a general matter, many users are becoming “greener” as a matter of corporate or government policy (or at least more aware of green issues) and the same can be said about many of the professionals who service those users (eg, arbitral institutions, lawyers, experts). We can expect that to feed through into all aspects of arbitration over time. We are already starting to see it in small ways like remote and/or paperless hearings.
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?
Courts (and, ultimately, lawmakers) should disincentivise parties from unnecessarily prolonging disputes for tactical reasons. They can do this by ensuring that enforcement actions can be dealt with expeditiously and ensure there are tools (eg, costs) for courts to respond to frivolous objections to enforcement. But the ability to resist enforcement is a key feature of the domestic and legal frameworks that parties choose when they agree to submit a dispute to arbitration, so I am loathe to characterise enforcement proceedings as an issue to be addressed.
To what extent should more be done to improve the transparency of arbitration proceedings?
I think there are questions about what “transparency” means and what the different stakeholder interests are that make it difficult to state a position in the abstract about whether more should be done to improve transparency. I do think that arbitral tribunals (and courts exercising a supervisory role in respect of those proceedings) need to have tools to assess what may be appropriate by way of “transparency” in the context of a particular dispute. I would focus on making sure those tools exist.
You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?
I tend not to think in terms of past or potential future accomplishments. My aspiration has always been to be engaged by clients on their most complex and interesting mandates and to work with interesting people. I consider myself fortunate to have achieved that in my career to date. If I maintain that throughout my career, I will consider that a very significant accomplishment.
What is the best piece of advice you’ve ever received?
“Labels are not a substitute for analysis”. It is a line from an arbitral award, not something passed on to me directly as advice. But I have taken it on board as useful guidance and the more experienced I become, the more it resonates.