Interviews with Our Editors: Opening Australian Arbitration Week with Michael Pryles, a Heavyweight of International Arbitration in Australia

Dr Michael Pryles AO PBM LLD is a distinguished international arbitrator based in Melbourne, Australia. Dr Pryles began his career in academia, ultimately becoming the Henry Bournes Higgins Professor of Law at Monash University before turning to private practice as a Partner at leading Australian law firm Minter Ellison. Transitioning to an independent arbitrator practice, Dr Pryles was an early leader in international arbitration in Australia. He sat in many arbitrations worldwide over a period of some 35 years. These included both ad hoc and administered arbitrations under the rules of all major institutions. In addition to commercial arbitrations, Dr Pryles has significant experience in investor-state arbitration under the ICSID, Permanent Court of Arbitration (“PCA”) and UNCITRAL Rules.

Dr Pryles served as a Commissioner of the Australian Law Reform Commission and was also a Commissioner of the United Nations Compensation Commission (“UNCC”) for eight years hearing claims against Iraq following the First Gulf War. He also held prominent leadership positions at various arbitral institutions, including as Treasurer and Governing Board Member of the International Council for Commercial Arbitration, Chairman of the Board and Founder President of the Court of Arbitration of the Singapore International Arbitration Centre (“SIAC”), President of Australian Centre for International Commercial Arbitration (“ACICA”) and Chairman of ICC Australia. He currently serves as the President of the Court of Arbitration of the Dubai International Arbitration Centre (“DIAC”). Dr Pryles’ extensive contributions to arbitration have been recognised by both the Australian and Singapore governments, with appointment as an Officer of the Order of Australia and the award of Singapore’s Public Service Medal.

During last year’s Australian Arbitration Week, Dr Pryles was appointed a Life Fellow by ACICA in recognition of his remarkable contribution to its institutional development and modern identity, including as President from 2002 to 2008 and overseeing the launch of the first ACICA Rules in 2005.

Dr Pryles, thank you for joining us on the Kluwer Arbitration Blog.

1.    You’ve had a varied career spanning academia, partnership in a leading law firm and independent practice as an arbitrator. Could you tell us more about your career trajectory and what led you to international arbitration?

My career in international arbitration really started when I was an academic. I taught in England and in the US and the University of Melbourne but spent most of my time at Monash University. Attraction to international arbitration largely flowed from my lifetime interest in conflict of laws (private international law) as a student, graduate student, and later as a lecturer and writer. I undertook a lot of research in that field and my first doctoral thesis was in that field. It was a natural progression to go from conflict of laws to international arbitration. I researched choice of law in international arbitration and the enforcement of foreign awards. My research and writing were a wonderful opening for me to become an arbitration practitioner.

I also recall that Australia’s Attorney-General’s Department had decided to host an annual conference in Canberra on various matters related to international law. That was at the time that Australia was considering whether to join the Hague Conference on Private International Law, and whether to enact relevant international legislation, particularly on international arbitration. I was a regular speaker. I was also asked to join the Australian delegation to the Hague Conference on Private International Law and had the opportunity to meet many people at the Hague.

When I left academia to join Minter Ellison, I was doing international work, courtesy of many of my former students who referred matters to me. I used to go to Europe frequently, which mushroomed when I became a Commissioner of the UNCC. That took me to Geneva six to eight times a year, over a period of eight years. I also got to know important European and American experts and professors, which led to further speaking obligations abroad. Within Australia I became involved with ACICA and ICC Australia.

2.    You mention your early involvement with ACICA. Could you share some reflections on the progress of ACICA and arbitration in Australia? What do you think is the scope for future development?

It took a while for the concept of international arbitration to be accepted in Australia. When I started speaking about it, some people were sceptical about its acceptance and future. Its worth and uptake were doubted. However, with the globalisation of international trade and investment, international arbitration became increasingly accepted. The international laws supporting it made it more desirable as a method of dispute resolution than domestic litigation.

I became involved with ACICA shortly after its establishment and was often invited to speak at their programmes and conferences. Over the last 40 years, ACICA has developed into a professional and admired international institution. It does a very good job promoting Australia and offers high service. That certainly helps the understanding of international arbitration in Australia. It does not of course mean that we will become a venue for international arbitration of the order of London, Paris, Singapore and other leading venues. We are respected but unfortunately geographically we are poorly placed. Being a federation with several major cities and court systems is not advantageous either. That said, we do have international arbitration in Australia and it continues to grow. This is particularly so in the resources field, which is a natural area for us because of our enormous resources and export trade. So that does see some significant arbitrations taking place in Sydney, Brisbane and particularly Perth. Certainly arbitration is very well understood by all the major firms in Australia now.

3.    In addition to your work in overseeing the ACICA Rules, you have also been involved in the drafting of and revisions to many other arbitral rules, including those of SIAC, DIAC and the PCA. With those experiences in mind, what do you think makes for a successful set of arbitral rules? And given your leadership experiences across different institutions, what does it take for an institution to make its mark and succeed? Does this vary from region to region?

I don’t think the rules matter that much now. The rules of the leading institutions have become very similar. The time of big differences between them is over. Nevertheless, the rules should be assessed on a regular basis and amended to improve their utility.

For an institution to stand out, location is terribly important. Singapore does very well because it is well-located and because of its reputation as neutral. It is safe and has a good court system, which understands arbitration. That was not always the case, and I remember the way it was in the earlier days with some poor decisions, sometimes following questionable Australian precedents!

I now spend considerable time in Dubai, which is a very interesting place. In a number of respects, it may be considered a new Singapore. There are, of course, significant differences but it is becoming a financial and economic centre of the Gulf. There is a lot happening there, with a lot of big international law firms now established there and people from all around the world. Dubai is adapting to internationally accepted arbitration practices in its procedures and the hard and soft law and will continue to grow as a centre for arbitration. The task for Australia is more difficult but should not be ignored.

4.    Turning to a more substantive question, you were previously a Professor of Conflicts of Law, Australia’s Delegate at the Hague Conference on Private International Law and lectured at the prestigious Hague Academy of International Law on this topic. Do you think a solid foundation in private international law is necessary for international arbitration practitioners?

As I mentioned, conflicts of law is what led me to international arbitration and I think it is most important. While not every case raises a choice of law problem, challenging questions sometimes arise. A good knowledge of private international law or conflicts of law is very useful. The classic issues of jurisdiction, choice of law, and the enforcement of judgments will always be relevant in this field.

5.    You mentioned above how writing helped to propel your career in arbitration. How do you think the benefits of publishing weigh against the risk of challenges based on views expressed?

This is a problem one must think about. In fact, I largely stopped academic writing when I built up my practice as an arbitrator. There is no doubt that some potential arbitrators are sometimes challenged on the basis that they have written on a legal issue which is perceived to arise in the disputant’s case. The argument is that they have already expressed an opinion on a legal matter which calls for determination and therefore are biased. On the other hand, a quality article on a relevant legal or procedural issue can do much to improve the standing of an aspiring practitioner.

6.    As we head into Australian Arbitration Week, what would your advice be for Australians practising in international arbitration? In particular, given Australia’s geographic isolation, we would be interested to hear your views on developing a career in international arbitration while being based here as you have been for most of your career.

Australians are as good as anyone else in the practice of international arbitration. The future for many Australians interested in the area will be to go overseas but there is also opportunity to live here and try to include a practice as counsel in arbitration in Asia or elsewhere.

There is no set track to follow in order to create a future in international arbitration. There are various things one can try, some work and some don’t. Each person has to acquire knowledge of and experience in international arbitration. Read a lot, attend conferences, and look out for avenues of involvement. Working in a law firm that has an arbitration practice or as a counsel administering arbitrations in one of the established arbitration centres is always rewarding.

Thank you very much, Dr Pryles, for your time and sharing these insights.

This interview is part of Kluwer Arbitration Blog’s “Interviews with Our Editors” series. Past interviews are available here.

Further coverage of Australian Arbitration Week will be available here.