David Brynmor Thomas KC

“A confident advocate and rises to the demands of complex cases with great charm.” The Legal 500 2022

David has acted in significant commercial arbitrations arising from joint ventures, breach of warranty on M&A transactions, the mis-sale of financial services products, aircraft leasing and the shareholder and commercial aspects of major projects.

He has also acted in litigation before the Commercial Court arising from arbitrations, in particular challenges to awards and their enforcement and anti-suit injunctions in support of arbitration. He also has experience of shareholder actions, unfair prejudice petitions and injunctions to prevent the calling or payment of bonds. 

Cases of note:

• Acted for the successful European party in a joint venture dispute as to the control of a manufacturing company in India. The LCIA arbitration, seated in London but subject to Indian law, was referred to on enforcement in India as “Karia”.
• Acted for the minority shareholder in formulating and successfully settling a claim for unfair prejudice under s994 of the Companies Act 2006, arising from the conduct of the business of a Fintech company.
• Acted for the claimant in obtaining an anti-suit injunction in support of arbitration in London, in response to litigation brought in India in breach of an arbitration agreement.
• T v V & W [2018] EWHC 1492 (Comm) and T v V & Ors [2017] EWHC 565 (Comm) - Acted for an arbitrator in resisting applications under sections 24 (for their removal) and 68 (to have their award set aside) of the Arbitration Act 1996, in each case based on allegations of bias against the arbitrator. 
• A v B [2016] EWHC 3003 (Comm) (25 November 2016)  - Acted for the successful award creditor in resisting a challenge an arbitration award, on the basis that the creditor had ceased to exist following a merger subject to Indian company law that had taken place during the course of the arbitration. 
• Emirates Trading Agency Llc v Sociedade De Fomento Industrial Private Ltd [2015] EWHC 1452 (Comm) (20 May 2015) - Acted for the successful award creditor to resist a challenge to an award, made on the basis that the tribunal had reopened issues of jurisdiction decided in an earlier award. The case raised issues of the res judicata and functus officio effects of partial final awards in International Chamber of Commerce arbitrations and their consequences. 
• Emirates Trading Agency Llc v Prime Mineral Exports Private Ltd [2014] EWHC 2104 (Comm) - Acted for the successful party in resisting a challenge (one of a number) to an award on jurisdiction under section 67 Arbitration Act 1996. The challenge was based on the meaning, effect and performance of an escalating dispute resolution clause. Also acted for the vendor in two parallel International Chamber of Commerce arbitrations, arising from the breach of contracts for the long-term sale and purchase of iron ore.

“… a very strong construction lawyer with excellent cross examination skills and can come up to speed in very short time.” The Legal 500 2022

David is a very experienced construction lawyer and teaches international construction contracts and arbitration as an honorary professor at Queen Mary University of London. 

Cases of note:

• Acted for the contractor in claims for very significant additional payments and extensions of time arising from the disruption caused by Covid-19 regulations to the construction of a new high-efficiency gas fired power station in England, expected to become the cleanest and most-efficient gas-fired power station in Europe. The claim was formulated successfully on the basis of a change of law rather than force majeure so as to recover money for the contractor as well as an extension of time.
• Acted for the contractor in an International Chamber of Commerce arbitration against its subcontractors, arising from the development of the first wind-turbine based power plant in a Middle East country. The claim involved the consequences of the catastrophic failure of transformers when the power plant was first connected to the grid. Subject to the laws of Jordan, London seat.
• Acted for the contractor in claims for extensions of time and payment for loss and expense in an Abu Dhabi Commercial Conciliation and Arbitration Centre (ADCACC) arbitration, subject to the laws of Abu Dhabi, arising from the construction of a military facility in the Middle East.
• Acted for the operator in an LCIA arbitration with a shipyard as to delay and cost overruns and on the conversion of vessels for use in oil production facilities in the Caspian Sea. 
• Acted for the owner in an expedited International Chamber of Commerce arbitration, subject to English Law, London seat, arising from a project for the supply of environmental cleansing plant and machinery for a plant in Eastern Europe.
• Advised the employer in relation to the termination of a project for an East African combined-cycle power plant, including exercise of “greenfield” rights on termination under the relevant FIDIC contract.
• Advised in relation to the application and recovery of sums for the remediation of cladding issues in London based high rise buildings.

“His ability to identify flaws in other side’s case is marvellous.” The Legal 500 2022

David is identified by Who’s Who legal as a leading practitioner for energy disputes, having conducted energy related disputes throughout his career, including those arising from:

• the oil and gas industry, in particular liquefied natural gas (LNG) and acting for operators under joint operating agreements
• electricity generation, including coal and gas fired power stations and renewable power, including wind and solar energy, and
• on the construction and failure of energy related infrastructure, in particular gas turbines, power plants and refineries, and floating production, storage and offtake (FPSO) facilities.

Cases of note:

• Acted for an importer of liquified natural gas (LNG) on claims arising form the comingling of LNG cargoes from different sources and importers at an LNG terminal in Europe.
• Acted for the contractor in claims for very significant additional payments and extensions of time arising from the disruption caused by Covid-19 regulations to the construction of a new high-efficiency gas fired power station in England, expected to become the cleanest and most- efficient gas-fired power station in Europe. The claim was formulated successfully on the basis of a change of law rather than force majeure so as to recover money for the contractor as well as an extension of time.
• Acted for one of two joint-venture partners in parallel ICC arbitrations, subject to English law with London seats, against its partner arising form the supply and installation of desulphurisation technology at a major coal-fired power station.
• Acted for the contractor in an International Chamber of Commerce arbitration against its subcontractors, arising from the development of the first wind-turbine based power plant in a Middle East country. The claim involved the consequences of the catastrophic failure of transformers when the power plant was first connected to the grid. Subject to the laws of Jordan, London seat.
• Acted for the owner in disputes arising form the supply and installation of wind-turbines in India and issues resulting from the acquisition of the supplier by a competitor of the owner.
• Advising on claims, counterclaims and wider risks arising from the catastrophic failure of a gas turbine at a power plant in Europe.
• Acted for the owner in relation to defects, delays and cost overruns on the refurbishment and recommissioning of drilling vessels. 

“A hands-on, commercial and strategic individual … who is … very passionate about arbitration … and … really excellent in the field.” Who’s Who Legal 2022

David has been appointed as sole, party-appointed and presiding arbitrator in over 60 arbitrations in addition to his practice as counsel. Those arbitrations have been ad hoc and for all of the major arbitration institutions. He has also acted as an emergency arbitrator and conducted arbitrations on an expedited basis. He is a member of the LCIA and of the Panel of neutrals of the ICDR. 

David served on Working Group II of UNCITRAL for around a decade in relation to the Arbitration Model Law and Arbitration Rules, attending on behalf of the CIArb. He was subsequently Chair of the Board of Trustees of the CIArb. David teaches at post-graduate level at Queen Mary University of London, where he is an honorary professor in the School of International Arbitration.

David is also a qualified mediator with the Centre for Effective Dispute Resolution (CEDR) and has conducted expert determinations, most recently on the nomination of the Law Society of England and Wales.

Cases of note:

• Party appointed arbitrator in an ICC arbitration subject to the English law, Paris seat, arising from the construction, commissioning and operation of a major solar power plant in North Africa.
• Party appointed arbitrator in an LCIA arbitration subject to English law, London seat, as to time and cost overruns and their recovery on the construction of a gas production platform.
• Party appointed arbitrator in a Singapore international Arbitration Centre (SIAC) arbitration, subject to Singapore law, Singapore seat, arising form the construction of an infrastructure project in the Middle East, including claims and counterclaims for agency fees and misrepresentations in the formation of the project agreements.
• Presiding arbitrator in a Stockholm Chamber of Commerce (SCC) gas price redetermination arbitration, subject to the laws of Sweden, Stockholm seat.
• Presiding arbitrator in an ICC arbitration subject to the laws of Pakistan, London seat, as to the acquisition and transfer of corporate holdings in licenses for the exploration and production of gas in Pakistan.
• Presiding arbitrator in an LCIA arbitration subject to English law, London seat, arising from alleged breaches of warranty and consequent refusal to pay deferred consideration on the sale and purchase of shares in companies holding assets in Eastern Europe.
• Presiding arbitrator in an ICC arbitration subject to the laws of Barbados, seat Bridgetown, Barbados, arising from the repudiation of an agreement for the sale and purchase of shares in a privately held telecommunications company.