David Brynmor Thomas

Year of call:
2011
Email:
david.brynmor.thomas@39essex.com

Clerks:
+44 (0)20 7832 1111

“Outstanding in international arbitration” The Legal 500

{0f045075-29c0-43a3-9bcd-3d83937457b2}_AAA_PanelMember_Color_2015_WebDavid Brynmor Thomas practices as counsel in complex, high value international commercial litigation and arbitration. He has particular experience of energy, infrastructure, joint-venture, post-M&A and shareholder disputes.

He has also been appointed as an arbitrator in institutional and ad hoc arbitrations, on more than fifty occasions.

David is an Honorary Professor in the Centre for Commercial Law Studies, Queen Mary University of London.

David presently serves as Chair of the Board of Trustees of the Chartered Institute of Arbitrators, having represented the Chartered Institute at the United Nations Commission on International Trade Law (UNCITRAL) Working Group on International Commercial Arbitration for its work on amendments to the UNCITRAL Model Law and the UNCITRAL Arbitration Rules. He is also a member of the International Chamber of Commerce’s Commission on Arbitration.

Before being called to the Bar, David was a partner in the Litigation and Arbitration practice at a City of London law firm, where he practiced as a Solicitor Advocate.

David is recommended by The Legal 500 for International Arbitration, both as arbitrator and counsel; and by Chambers & Partners for International Arbitration: Arbitrators (Band 1).

Banking & Finance


Acting for a European Insurance company in a complex Stockholm Chamber of Commerce arbitration arising from alleged breaches of warranty and indemnity claims on the sale of a pension company, following the mis-selling of personal pension products. The arbitration has involved five partial awards to date, addressing issues of liability amongst the parties, quantum and the effects of UK and Swedish tax on the damages recoverable.

High Court contribution proceedings following the settlement by one Respondent of complex arbitration proceedings arising from the financial services sector.

Advising a German financial institution in relation to claims for indemnification and counterclaims for breach of warranty following the sale of financial businesses.

Preventing the call of ‘on demand’ bonds on behalf of a Spanish contractor in India.

Resisting the call of an ‘on demand’ bond on the basis that the call was fraudulent.

Construction


Acting for a developer fund in claims brought by its tenant and in consequent claims against its contractors and professional team, resulting from post-completion defects at the headquarters building of a media company in London.

Acting for the project manager in disputes arising from the refurbishment of a listed corporate headquarters building in London.

Acting for the developer of a shopping complex in relation to claims brought by tenants and consequential claims against its contractor and architect following a fire that destroyed the complex.

Acting for the contractor in an adjudication as to delay and disruption of a project for a paper mill in England

Acting for the developer of a local authority headquarters building in enforcing, by arbitration and related proceedings in the TCC, an agreement for lease of the building.

Commercial


Counsel in Emirates Trading Agency v Prime Mineral Exports Private Limited – a case on the enforceability of pre-arbitration conditions in escalating dispute resolution provisions Obtaining an anti-suit injunction to restrain proceedings in Kalkota, in support of an arbitration in London Lead counsel for the Claimant in a lengthy joint venture dispute arising from the control and management of a heavy industry manufacturing company in India Counsel for the successful claimant in an ICC arbitration for US$ 14 million arising from the termination of a long term contract Counsel for the Claimant in an ICC arbitration for US$45 million in relation to a long term contract for the sale and purchase of iron ore fines. Acting in High court litigation in relation to an ICC Award under s68 of the Arbitration Act 1996 (F v M) in which the nature and effect of a dissenting opinion by one of three arbitrators was considered. An ICC arbitration arising from the alleged laundering of money to pay bribes in the procurement of contracts in the Middle East – this involved both challenging the other party as to the true nature of the parties’ relationship and tendering witness evidence from the Respondent that the Claimant was laundering bribes on behalf of the Respondent. Advising a Spanish contractor in relation to shareholder issues arising on a joint venture to develop a desalination plant in India; in particular on the conduct of board meetings and resolutions where the joint venture company asserted claims against the client at the instigation of the other joint venture party. Advising on the threatened wrongful termination of a long term contract for the sale of copper concentrate; including urgent injunctive relief to prevent the tortious conversion of copper concentrate by the vendor. Advising in relation to commission payments made to a commercial agent in an Asian country following the sale of warships, including questions as to whether such payments were to be characterised as being corrupt and the consequences if they were. Advising a major Indian corporation in relation to the termination of an investment agreement for coal mining interests in Indonesia, including strategic issues as to the conduct of pre-termination negotiations in the context of express termination rights. Acting for the vendors of a fund of funds in a post-completion Expert Determination as to the value of assets under management, where the value of those assets had been affected by completion having taken place the weekend that Lehman Brothers crashed. Acting in an LCIA arbitration relating to the breakdown of a joint venture in India for the development and exploitation of food industry brands, including consideration of the proper construction of agreements between the parties and the application of the parol evidence rule in Indian law to an arbitration being conducted elsewhere. Acting for a major hotel chain in High Court proceedings against a City of London law firm, arising from the conduct of an International Arbitration and the subsequent setting aside of the award. As well as considering normal practice and procedure in international arbitration the case involved questions as to choice of forum on forum non conveniens grounds. Advising an International Arbitration institution in relation to allegations, by a party seeking to prevent the conduct of an arbitration, of a conflict of interest on the part of the institution in the appointment of a sole arbitrator. Acting for a European Government in relation to claims in tort by it against the manufacturers of blood products on behalf of nationals infected with Hepatitis C by such products. Advising the UK subsidiary of an US corporation in relation to UK, UN and EU sanctions against Libya in relation to the export of compressors for gas-lifting services.

International Arbitration


“David is an extremely experienced and highly regarded international arbitration lawyer. He is so thoughtful and knowledgeable.” Chambers & Partners

“Excellent and definitely one to watch.” Legal 500 2015

Chairman of an ICC Tribunal in an arbitration in relation to the sale and exploitation of Intellectual Property rights, subject to the law of Ohio, London seat.

Chairman of an LCIA Tribunal in an arbitration in a dispute arising from a corporate transaction in Unkraine, subject to English law, London seat.

Chairman of an ICC Tribunal in an arbitration arising from the sale of shares in a major telecommunications company, subject to the law of Barbados, Bridgetown seat.

Chairman of an ICC Tribunal in an arbitration relating to ownership of gas exploration and production licenses in Asia, subject to the law of Pakistan, London seat.

Chairman of a DIAC Tribunal in an arbitration arising from a major construction project in the UAE, subject to the law of Dubai, Dubai seat.

Co-arbitrator in an ICC arbitration airising from a major rail project, subject to the Law of Turkey, Lausanne seat.

Co-arbitrator in an ICC arbitration arising from a geothermal project in Asia, subject to the law of the Philippines, Singapore seat.

Co-arbitrator in an arbitration under the Rules of the ICC of a dispute arising from tax indemnities on a major infrastructure project between German and Albanian parties, subject to the law of Albania, Vienna seat.

Co-arbitrator in an arbitration under the Rules of the ICC between US and Indian parties, in relation to a joint venture dispute, subject to Indian law, Paris seat.

Co-arbitrator in an arbitration under the Rules of the LCIA between a bank and an Eastern European state authority, relating to the bank’s fee following the arrangement of funding for infrastructure works, subject to English law, London seat.

Sole arbitrator in an LCIA arbitration between a Polish vendor and a Chinese purchaser, in a dispute arising from a contract for the sale of goods to China and a related advance payment guarantee, subject to English law, London seat.

Sole arbitrator in an arbitration under the Rules of the LCIA between a German party and a Saudi Arabian party, in relation to an engineering project, subject to English law, London seat.

Sole arbitrator in an arbitration under the UNCITRAL Rules, appointed by the LCIA, in relation to an exclusive distribution agreement for the sale of goods in the United Arab Emirates, subject to English law, London seat.

Co-arbitrator in two related arbitrations under the UNCITRAL Arbitration Rules between parties from the United Kingdom, the Philippines the British Virgin Islands and Iran, relating to a share purchase agreement and a related guarantee, subject to English law, London seat.

Co-arbitrator in an arbitration under the UNCITRAL Arbitration Rules in relation to a shareholders agreement, subject to English law, Geneva seat.

Co-arbitrator in an arbitration subject to the UNCITRAL Arbitration rules, between a Russian and Mongolian parties, subject to Public International Law and the law of Mongolia, London seat.
Sole arbitrator in an ad hoc arbitration between an US corporation and a bank in the Gulf Region, subject to English law, London seat.

Sole arbitrator in an ad hoc arbitration between Swiss and Georgian parties, subject to English and Georgian law, London seat.

Sole arbitrator in three ad hoc arbitrations of partnership disputes, nominated by the same relevant professional body in all three arbitrations, subject to English law, London seat.

David is qualified in England and Wales. In addition to English law, he has experience of various other applicable laws, including those of

Albania
Austria
California
Cyprus
Denmark
Egypt
France
Germany
Hong Kong
India
Japan
Kenya
Malaysia
Mongolia
New South Wales
New York
Pakistan
Qatar
Russian Federation
Saudi Arabia
Singapore
Spain
Switzerland
Sweden
Taiwan
Tunisia
United Arab Emirates

He also has significant experience of matters involving questions of Public International Law and European Union Law.

In addition to litigation and arbitration in London, David has conducted arbitrations, either as counsel or as arbitrator, with seats in:

Geneva
The Hague
Hong Kong
Mumbai
New York
Paris
Qatar
Singapore
Stockholm
Taipei
The United Arab Emirates
Vienna
Zurich

Aviation & Aerospace


Acting for a major aero engine manufacture in consolidating two ICC arbitrations as to the pricing of a long-term maintenance contract with a national airline; and subsequently conducting and settling the consolidated arbitrations.

Advising an aero engine manufacturer in relation to claims for the repayment of engine incentive payments following the cancellation of orders for civil jet aircraft, including choice of forum for the claims.

Advising an aero engine manufacturer in relation to claims arising from the retirement of a fleet of Boeing 747 aircraft by an airline, where the order in which aircraft were retired affected obligations under, and the profitability of, a “power by the hour” engine maintenance agreement.

Acting in an ICC arbitration for a jet engine manufacturer in disputes against an airframe manufacturer arising from the cancellation of a Regional Jet Aircraft development programme.

Infrastructure


Acting in an ICC arbitration arising from the post-conflict decontamination and remediation of a city centre site in the Middle East.

Acting in an LCIA arbitration relating to the consequences of a failure of regulatory approvals for an environmental project. The arbitration effectively involved allegations of bad faith against a public authority, arising from an express contractual obligation that the parties to the project would act towards one another in good faith.

Acting for the supplier as Claimant in an LCIA arbitration in relation to the supply and installation of a biofuels plant in Eastern Europe. As well as significant technical expert evidence the arbitration involved the direct impeachment of the Respondent’s chief executive on the basis that he had tendered dishonest evidence, inconsistent with direct representations made by him to a funding bank.

Advising a Spanish contractor in relation to force majeure and related issues following the delay and disruption of a desalination plant in India by successive tropical storms.

Acting for the contractor in a dispute as to the development and implementation of moving block signalling technology on a mass transit rail project.

Advising a mass transit authority in relation to delays to a communications upgrade for trains on a mass transit railway.

Acting in an ICC arbitration in relation to the construction and functioning of a plant in Asia for the manufacture of plastics, including related injunction proceedings to seek to prevent the calling of on demand bonds on the basis that such call was fraudulent.

Acting for an Italian joint venture in relation to the repudiatory breach of a contract to construct a dam in Kenya following the delayed grant of export finance and allegations that the Engineer to the project had subsequently demanded a bribe from the joint venture.

Acting for an Italian joint venture in relation to a project for the development of a highway in Taiwan.

Advising on, negotiating and drafting numerous arbitration, jurisdiction and choice of law provisions.

Drafting and negotiating the dispute resolution scheme for the Channel Tunnel Rail Link.

Drafting and negotiating dispute resolution provisions for the decommissioning of some of the United Kingdom’s nuclear reactor fleet.

Reviewing and advising on possible amendments to the Rules of an industry specific arbitration association and on possible expedited or small claims rules.

Energy


Acting in two ICC arbitrations between Japanese and Danish parties in relation to the underperformance of flue gas desulphurisation technology at two coal fired power stations. One arbitration arose from a consortium agreement whereas the other was in relation to a contractor – subcontractor relationship. The two arbitrations were distinct, with only one common arbitrator, so as to avoid issues of set-off across contracts being raised.

Acting for an Indian petrochemical corporation in an arbitration under the UNCITRAL Rules relating to a major oil refinery in India.

Acting for an energy major in a shareholders dispute, following delay to an LNG project by a contractor.

Advising an energy major in relation to the interpretation and application of limitations and exclusions of liability following delay to an LNG project in North Africa.

Acting for an oil corporation in relation to the interpretation and application of a ‘carry’ agreement for investments in infrastructure the UK North Sea, in particular the characterisation of “Capital” and “Operating” expendidture.

Advising the charterer of an deep sea drilling ship in relation to allegations, in Russia and in Norway, that the main charter was invalid; acting in relation to efforts by the ship’s sub-charterer to avoid the sub-charter based upon allegations made in relation to the charter, and coordinating separate injunction proceedings in Scotland in relation to monies received by the ship’s drilling manager but not accounted for by it to the client.

Acting for a deep sea drilling contractor in an LCIA arbitration arising from the sale by it of three shallow water drilling barges.

Acting for an oil and gas corporation in a dispute as to regasification charges on the import of LNG

Recommendations


David is regularly recommended as a leading arbitration lawyer in various directories including Chambers Global, Chambers Europe and Chambers UK; Who’s Who Legal; and Legal 500

“Outstanding in international arbitration.” Legal 500 2015
“David is an extremely experienced and highly regarded international arbitration lawyer. He is so thoughtful and knowledgeable.” Chambers & Partners 2015
“A highly efficient, responsive and effective arbitrator.” Legal 500 2014
‘He provides excellent advocacy, clarity of thought and is an absolute pleasure to work with’ Legal 500 2014
“He has real knowledge and experience of the whole arbitration process.” Chambers & Partners 2014
“One of the top arbitration practitioners in London” Legal 500
“Lauded as one of the UK’s leading arbitration advocates, David Brynmor Thomas presents a daunting challenge for any opposing counsel.” Chambers Global 2009
Described by a leading directory as having a “particularly sophisticated understanding of the international arena” and identified as one of the 45 leading arbitration lawyers aged under 45 globally.

Call +44 (0)20 7832 1111 for more information

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