McCullough Robertson Lawyers
Level 11, 66 Eagle Street
Brisbane QLD 4000
• What are the most important qualities for a successful arbitrator to have?
A successful arbitrator needs to have many qualities. She or he must strive to serve the parties and deliver substantive and procedural justice to them. This means that often she or he must be able to manage complexity, large volumes of material and difficult situations to find a process that accords the parties procedural fairness while at the same time being both efficient and pragmatic. Each arbitration is different and the arbitrator must know enough of the case to find the most suitable procedure for the parties. Often times the arbitrator needs to guide or gently encourage the parties in respect of the procedural directions while at the same time being a good listener to suggestions that the parties have as to the conduct of their arbitration. Ultimately, the arbitrator must be able to process a lot of information in the form of submissions and evidence (oral and written) so as to deliver a reasoned and enforceable award. When I’m arbitrating, I’m always thinking about this “end game” and how I can help the parties achieve finality by delivering an enforceable award in the most efficient way.
• Do you believe that tribunal secretaries should be used by arbitrators? If so, what is their proper role?
I think that it is sensible to use tribunal secretaries in order to assist the goal of being efficient and ensuring that awards are delivered in a timely fashion. However, the critical functions of decision making and reasoning are the exclusive domain of the arbitral tribunal. I have a tribunal secretary who helps me with administrative matters such as keeping materials received from the parties in good order, recording procedural directions and drafting the procedural sections of the award. This allows me the time and space to closely examine the submissions and evidence so as to fully prepare the substantive parts of the award.
• Do you believe that Arbitrators have the right or an obligation to conduct their own legal research?
I have been fortunate in that the counsel who have appeared before me have mostly prepared very helpful submissions that comprehensively deal with the issues in dispute. Very occasionally an issue may arise where I form the view that both counsel may have missed a critical point. Rather than conduct my own research and risk surprising the parties and endangering the arbitral process with natural justice concerns I prefer to simply raise any query that I may have with the parties and give them an opportunity to provide any relevant submissions. I’m firmly of the view that the arbitral process is very different to the litigation process in the sense that arbitrators must not make decisions or address issues outside the boundaries of what the parties have put forward to the tribunal. There must not be any surprises from the arbitral tribunal in this respect.
Partner, McCullough Robertson Lawyers (2006 – Present); practising lawyer at McCullough Robertson Lawyers since 1998; visiting lecturer at University of Melbourne (Advanced Construction Law); visiting lecturer at University of Queensland (Alternative Dispute Resolution)
Board Member of ACICA; Board Member of Resolution Institute, Past Chair Regional Arbitral Institute Forum; Member Nominations Committee of ICC Australia
ACICA Panel of Arbitrators; New Zealand Dispute Resolution Centre; Dubai International Arbitration Centre; Thai Arbitration Institute List of Arbitrators; Grade 1 Arbitrator of Resolution Institute; Queensland Law Society
20 international and domestic arbitrations as counsel and eight as sole arbitrator (including experience with ACICA, ICC, JCAA, and ad hoc arbitrations.)
‘The Non-Responsive Respondent: Taking an Arbitration Forward and How’ (2019) 85(1) The International Journal of Arbitration, Mediation and Dispute Management, 65
‘The Use and Misuse of Expert Evidence: Rules on Experts – A Critical Assessment’ (2019) 13(4) Construction Law International
‘International Arbitration Australia: 2019 Year in Review’ McCullough Robertson Publication
‘The ‘Bones’ Arbitration: An American Cautionary-Tale for Australian Practitioners’ (2019) 1 The ACICA Review 37
‘Apply to Set Aside, or Appeal Against an Award?’ (2018) 38(8) Proctor 14
‘Director’s fury over road block to litigation: Mad Max arbitration to be heard in Hollywood’ (2018) 1 The ACICA Review 25
‘“Fast Track” Arbitration Rules – Room for Development’ (2018) 182 Australian Construction Law Newsletter, 15
‘International Arbitration Australia: 2018 Year in Review’ McCullough Robertson Publication
‘International Commercial Arbitration 101’ (2017) 37(11) Proctor 16
‘Australian Courts’ Approach to Multi-Party and Multi-Contract Arbitration’ (2016) 2 The ACICA Review 29
ADR Forms and Precedents (Lexis Nexis) (2009 to present)
‘International Arbitration: The Justice Business’ (2004) 21(4) Journal of International Arbitration 341
General Editor, The Arbitrator and Mediator (Resolution Institute) (2002 to present)
‘A Critique of Foreign Arbitration in Japan’ (2001) 18(2) Journal of International Arbitration 177
‘Judicial Independence: Attorney-General (Cth) v Tse Chu-Fai’ (2000) 74(10) Australian Law Journal 707
‘A Critique of Foreign Arbitration in China’ (2000) 17(3) Journal of International Arbitration 89
‘Dispute Resolution Chinese Style – The Influences’ (1999) 10(4) Australasian Dispute Resolution Journal 266
‘Mediator Intervention to Ensure Fair and Just Outcomes’ (1999) 10(2) Australasian Dispute Resolution Journal 142
Russell Thirgood is a pre-eminent Australian arbitrator, experienced mediator and senior dispute resolution lawyer.
He is a practising and grade 1 arbitrator and sits on the panels of a number of international and domestic arbitral institutes. He has arbitrated disputes arising out of a range of industries including infrastructure, construction, mining, energy and property. Russell is the author of the arbitration rules of the Resolution Institute, the most regularly used rules for arbitrations in Australia.
As a senior partner in a national law firm, Russell has over 20 years’ experience representing clients in major and complex dispute resolution, particularly construction and infrastructure disputes.
Russell offers parties an ‘expedited arbitration’ service. This leads to time and cost savings while maintaining high quality standards