Overview
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Law360, New York (May 9, 2016, 4:36 PM ET) -- Based in Steptoe & Johnson LLP’s London office, partner Matthew Coleman focuses his practice on international arbitration, litigation and public international law. Many of Coleman's cases involve concurrent proceedings before tribunals and courts, and have been in favor of, or against, international companies, state agencies and states. He has acted as lead counsel on investment treaty and commercial arbitrations in the leading arbitration forums. Coleman has also appeared as counsel in the Courts of England.
Coleman's public international law practice has a particular focus on acting as lead counsel in investment disputes between states and foreign investors (ISDS), including at ICSID. His work for states has included advice relating to the investment chapters of free trade agreements and drafting treaties. Coleman has been recognized as a leading individual in Chambers UK from 2011 to 2016 and as a leading individual in The Legal 500 UK in 2015.
Q: What attracted you to international arbitration work?
A: Like many people of my generation, I started off as a general commercial litigator. I did not seek out international arbitration, it, in a sense, found me. By that I mean that the time I left law school in New Zealand in 1994, and thereafter when I came to London in 1996, coincided with what is commonly called "globalization." More businesses of all sizes were trading across borders, and (as we know) it was, and is, common for two foreign parties not to wish to submit to the jurisdiction of the other's courts. Added to this was that early on in my career, I had a number of clients conducting business in Africa. The combination of those factors meant that the majority of contract disputes on which I was instructed contained arbitration agreements. My introduction to investment treaty arbitration was equally serendipitous: a friend from one of the development finance institutions asked if I would like to meet some farmers from Zimbabwe whose property had been expropriated (more on that later). I now spend the majority of my time working on investment treaty arbitration cases, but I still undertake court litigation, which I find improves my arbitration advocacy.
Q: What are two trends you see that are affecting the practice of international arbitration?
A: My sense is that the availability of third-party funding has led to more cases being submitted to arbitration, particularly investment treaty arbitration. The profession is still working out the issues that arise as a result of third-party funding, in particular whether it may lead to tribunals issuing orders that security for the other party's costs are posted. To date such orders have been extremely rare, and if granted would choke off many claims. The potential effect of such orders needs to be balanced with the fact that many, but by all means not all, parties that are funded by third parties, are in need of that funding because of the conduct of the other party.
Another trend is that although some of the arbitration institutions are making efforts to speed up arbitration proceedings, they do not appear to be getting any quicker. At the same time, many of the courts in the major arbitration institutions provide a procedure that leads to the quick resolution of disputes. If this continues, more people will choose courts over arbitration.
Q: What is the most challenging case you’ve worked on and why?
A: The answer to that is simple: the two investment treaty cases I recently completed against Zimbabwe concerning the expropriation of property pursuant to Zimbabwe's Land Reform Program. Zimbabwe defended the case on the basis that it was merely seeking to correct imbalances created during that country's colonial period (when in reality it took property from people because of the color of their skin for political ends). In addition, a third party applied to make submissions in regard to the rights of indigenous people, a complex topic given the history of settlement in Zimbabwe by numerous ethnic groups. Therefore, the period covered by the cases was 400 years, not the 25 years my clients had invested in Zimbabwe. Added to that was the fact that Zimbabwe made 15 challenges to jurisdiction and admissibility, including on the first day of the oral hearing. Lurking in the background was the threat of violence to my clients, at one point leading to the tribunals ordering Zimbabwe's security services not to kill my clients. In summary, all very interesting, unpleasant at times, and a lot to master.
Q: What advice would you give to an attorney considering a career in international arbitration?
A: The procedure and culture of international arbitration is not complicated, although the vast amounts of material written on the subject may lead you to conclude otherwise. What takes time and practice is mastering the art of written and oral advocacy. A good place in which to do that is court; judges tend to be more demanding of the advocates, insisting on brevity and identification of the issues — less is always more. From day one start to think how you can cultivate your own clients.
If I had my time over again, I would have sought out a mentor. However, at some point you need to get what I call "command experience," i.e. acting as lead counsel. The responsibility that comes from being what my American colleagues call "first-chair counsel" is far greater than being "second-chair counsel"; the sooner you get that experience, the better.
Q: Outside of your firm, name an attorney who has impressed you and tell us why.
A: It would be easy to name the great and the good, and indeed many of them are very impressive. However, my answer must be Joe Whitfield at Michelmores in London who I have probably never thanked enough. Joe is not a litigator, but he has always been generous with his time to younger lawyers, and is the person who introduced me to working on disputes from Africa; that opened a lot of doors for me, and ultimately led to a career in international arbitration.
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