Name of Arbitrator:

Audley Sheppard, QC

Education, awards, and selected publications:

Education

• LL.B (Hons) & B.Commerce, Victoria University of Wellington, New Zealand – 1984
• LL.M, University of Cambridge, England – 1986

 Awards

Queen’s Counsel – 2015

 Publications

• ‘Dissents in International Arbitration’, in “The Roles of Psychology in International Arbitration” (Wolters Kluwer, 2017)(ed Tony Cole)(with Daphna Kapeliuk)
• ‘The Approach of Investment Treaty Tribunals to Evidential Privileges’, in ICSID Review (2016, vol. 31(3) at 670)
• ‘Oaths and Perjury’, in “Defining Issues in International Arbitration” (CIArb, 2016)(ed Julio Cesar Betancourt)
• ‘English Arbitration Act 1996’, in “Concise International Arbitration” (Kluwer, 2014)(ed Loukas Mistelis)
• ‘Commentary on UK Investment Treaty’, in “Commentaries on Selected Model Investment Treaties” (OUP, 2013) (with Chester Brown)
• ‘Applicable substantive law’, in “Arbitration in England” (Kluwer, 2013) (eds Julian Lew & ors)
• ‘Legal Privilege and Confidentiality in Arbitration’, in “Privilege and Confidentiality: An International Handbook” (IBA, 2012) (with Fabian von Schlabrendorff)
• ‘Are Stabilization Clauses a Threat to Sustainable Development?’, in “Sustainable Development in World Investment Law” (Wolters Kluwer, 2010) (with A. Crockett)
• ‘Closing Arguments’, in “The Art of Advocacy in International Arbitration” (Juris, 2010)(eds Doak Bishop and Ed Kehoe)
• ‘Arbitrator Independence in ICSID Arbitration’, in “Liber Amicorum in Honour of Christoph Schreuer” (OUP, 2009).
• ‘Mandatory Rules in International Commercial Arbitration – an English Perspective’, in The American Review of International Arbitration (2008, vol. 18 at 121)
• ‘The Jurisdictional Threshold of a Prima-facie Case’, in “International Investment Law” (OUP, 2008)
• ‘International Agreements Covering Foreign Investment in Services: Patterns and Linkages’, in “Regional Trade Agreements and the WTO Legal System” (OUP, 2006) (with F. Ortino)
• ‘Res judicata and estoppel’ in “Parallel State and Arbitral Procedures in International Arbitration“ (ICC, 2005).
• ‘Report on public policy as a bar to enforcement of international arbitral awards’, in ILA Reports, in Arbitration International (2003, vol. 14, at 217).

Countries qualified to practice:

England & Wales

New Zealand

Language(s):

English

Name of law firm or institution:

Clifford Chance LLP, London

Area(s) of specialisation:

• Energy and Natural Resources
• Construction, Engineering
• Investment protection
• Public International Law

Institutional affiliation(s):

• Chairman of Board, London Court of International Arbitration
• Visiting Professor, School of International Arbitration, Queen Mary, London
• Fellow, Chartered Institute of Arbitrators
• Former Vice President of the LCIA Court (2011-2016)
• Former Member of the ICC Court (2008 – 2012)
• Former Co-Chair of the IBA Arbitration Committee (2006-08)
• Former Rapporteur of the ILA Arbitration Committee (1996-2006)
• Editorial Board of :
  • Journal of International Arbitration
  • International Arbitration Law Review

• Advisory Board of:
  • Africa Arbitration
  • BIICL Investment Treaty Forum
  • Arbitration Ireland

Please provide a brief background of yourself and experience working on disputes in Africa.

After qualifying in law and commerce in New Zealand, I did a Masters degree at Cambridge University, and then joined a London law firm, and I am still there! I specialise in international arbitration, both as counsel and arbitrator, across the full gamut of commercial and investor-state disputes.

A very important part of my practice concerns disputes originating on the African continent, including cases as counsel in connection with marketing of diamonds from Angola, power supply in Botswana, hotel development in Egypt, rare earth exploration in Kenya, production sharing agreements in Nigeria, and rig decommissioning in South Africa. I have sat as an arbitrator in cases concerning an agent’s commission in Libya, and a mine expansion in Mozambique.

As the Chairman of the LCIA Board, what is the LCIA’s approach to the African market?

The LCIA sees the African market as a priority and intends to increase its activity there. As African economies grow, the need for arbitration and the services of arbitral institutions will also increase. The LCIA is already a popular choice for corporations active in Africa, especially in Anglophone jurisdictions. The LCIA has an African Users Council, with representatives from across the continent. The LCIA will continue to hold symposia, in the well-known Tylney Hall format, in venues throughout Africa, which help develop understanding of international best practice. The LCIA is also keen to develop the diversity of African arbitrators on LCIA tribunals.

As Partner at a leading law firm, what do you consider as the biggest challenge facing international firms working on disputes in Africa?

A significant challenge is that Africa is not homogenous, with different legal histories, languages and cultures, so one needs lawyers with English, French, Belgian and Portuguese affinities. I would also mention the rules in some countries such as Nigeria which do not allow foreign lawyers to conduct arbitration governed by Nigeria law and seated in Nigeria, even when co-representing a client with local counsel.  Another challenge is the risk of injunctive relief from the local courts: it seems too easy in some jurisdictions to derail an arbitration. On the other hand, the quality of lawyering and the warmth of hospitality of many African lawyers I have worked with is manifest.

What impact will Brexit have on UK-Africa relations on foreign investment and what advice will you give foreign lawyers working or intending to work on disputes in Africa?

If the Brexiteers are to be believed, Brexit should give greater freedom to the UK to enter into new and better trade arrangements with other countries, including those in Africa, unencumbered by the EU’s policies. Irrespective of Brexit, I am confident trade and investment between the UK and Africa would have continued to increase. That should keep transactional lawyers busy, and an increase in business will inevitably lead to a flow of disputes.

With more African states acceding to the New York Convention, what are your thoughts on the enforcement trends in Africa?

Acceding to the NYC gives a positive signal, but it is not of itself a panacea. It must be accompanied by a pro-arbitration policy from the judiciary. There remain concerns that there are barriers to enforcement, including inordinate delays and interference in the court process, especially when governmental and parastatal interests may be affected.

With the rise in the use of third-party funding, how can Africa benefit from the funding arrangement and what in your opinion should funders be looking at before investing in disputes in Africa?

My experience of third party-funders is that they look primarily at the merits of the claim and likelihood of enforcement. So there is no reason why TPFers should not be interested in claims arising in Africa, unless enforcement against African respondents is likely to be difficult.

As a leading arbitrator, what advice do you have for young arbitrators who see you as their role model?

I recently had the pleasure of speaking to a group of young African lawyers at a YIAG event in London. I would advise not to be in too much of a hurry and have a good grounding in your own legal system; but, be curious, widen one’s horizons by studying and working overseas if possible, find a good mentor, be a tribunal secretary, over time get known by attending arbitration conferences and writing on arbitration topics, meet other practitioners, organise events, and be lucky.

How can arbitration in Africa be improved?

Arbitration in Africa will inevitably improve as practitioners get more experience, often by co counselling with foreign specialists. African parties should have the confidence to appoint African arbitrators, who will then get international exposure and encourage others. Governments and the judiciary must show support by endorsing only appropriate and commensurate intervention in t