Perth Legal International speaks to Ben Giaretta, a disputes partner at Mishcon de Reya LLP (London), specialising in international arbitration and mediation. For the majority of his career, Giaretta has been based in London, but between 2009 and 2016 he lived in Singapore. Giaretta’s experience spans a number of sectors such as oil & gas, power, renewables, construction, transport, insurance, telecommunications and others. He represents clients in arbitrations and mediations and is also frequently appointed as arbitrator or mediator. All of Giaretta’s work involves an international element, which means that he travels widely to see clients, to interview witnesses and to attend mediations or arbitration hearings. He has worked for clients on every continent and has taken part in arbitrations seated in London, Paris, Doha, New Delhi, Tokyo, Singapore, Jakarta, and many other places.
With such unparalleled experience, Perth Legal International was delighted to have such opportunity to hear his views about arbitration and the future of mediation and opportunities for Perth and its legal sector.
As Giaretta was based in Singapore for seven years, we wanted to know how much of his work there involved Perth, whether because the parties were based here or because the dispute was related to Perth in some measure. Unsurprisingly, Giaretta conducted a lot of work for clients in Perth, all in the energy and resources sector. He has spent a lot of time in Perth with clients and witnesses, and he has worked with Perth-based lawyers on several matters. However, he told that us that ‘in every case the dispute involved an arbitration seated outside Perth’. Perth Legal International realises that there is a bit of work to be done to make Perth a fully arbitration-friendly venue.
Importantly, when it comes to the consideration of Perth as an arbitration-friendly forum, Giaretta outlines a double test: firstly, that it is somewhere one can easily travel to, where the hotel accommodation is good quality, where one can easily get around, and where there is no difficulty arranging a hearing; and secondly, a place where the legal environment (meaning the judiciary, the lawyers and the statutory/caselaw framework) is supportive of arbitration. Giaretta told us ‘I can readily confirm that Perth passes the first test. For the second, I can’t comment properly on the statutory and caselaw framework, but I can say that I have encountered many talented and capable lawyers in Perth who are very comfortable with and experienced in international arbitration.’
While Perth is barely five hours’ flight from Singapore, the legal sector of Perth can only benefit to a certain extent of this proximity, Giaretta tells Perth Legal International. On the one hand, this relatively short distance allows for an easy interchange between the two and facilitates the necessary visits of the lawyers and clients, but there are far more countries that are closer to Singapore than to Perth, and there are far more direct flights to Singapore than to Perth. Therefore, from his point of view, ‘Singapore is in a better position than Perth to attract international disputes, and Singapore might even be an obstacle for Perth’s growth as an international disputes centre: parties who might otherwise go to Perth, might choose Singapore because it is closer’. Moreover, ‘Singapore might also draw some disputes away from Perth. In the WA resources sector, for example, a foreign buyer dealing with a Perth-based seller might rely on the proximity of Singapore to say that an arbitration should be held there, rather than in Perth, because it is a neutral location and is easy for both parties to get to. Perth probably needs to promote itself as a dispute resolution centre all the more for this reason.’
So we have quite a bit of work to do put Perth in the map of international arbitration. On another note, we wanted to know more about the Singapore Mediation Convention, something on which Giaretta is quite the expert. Perhaps this could represent an increase in the use of mediation in international disputes. He thought it would undoubtedly that will be the case, but with a caveat: how quickly countries sign up to the Singapore Convention. It has taken 60 years for most countries throughout the world to adhere to the New York Convention (of 1958, on the Recognition and Enforcement of Foreign Arbitral Awards). In this case, Giaretta doesn’t expect that it will take as long for a critical mass of countries to accede to the Singapore Convention because the world is much more accustomed to international dispute resolution than it was in the 1960s and 1970s. But it is feasible that this will take a decade or so at least. In the meantime the main impact of the Singapore Convention will be that mediation will be much more in the forefront of people’s minds when it comes to designing international dispute resolution mechanisms: contract drafters will probably think more often to include mediation as a step in the dispute resolution process prior to arbitration, and disputants will probably be more likely to try to mediate their disputes, because of the familiarity with mediation that will be promoted through frequent references to the Convention.
That sounds like another area of growth for dispute resolution lawyers and mediators in Perth, then
Perth Legal International thanks Ben Giaretta for his time and insightful responses and we hope that his work will bring him back to Perth soon.