Australia: Focus on: Rob Buchanan
Last Updated: 5 October 2010

Rob Buchanan is a Partner in the Construction & Engineering group based in Sydney. Rob specialises in disputes arising out of major projects, with a particular focus on energy and major infrastructure. With a career spanning civil engineering, law and Her Majesty’s Services, Rob’s unique experience places him as a leader in dispute resolution and mitigating potential risk.

Could you tell us a little about your professional career?

I studied Civil Engineering and then worked as a bridges engineer for six years. I have qualified as a legal practitioner in both the United Kingdom and Australia, practicing in Construction and Engineering dispute resolution. I was also a member of HM Reserve Forces for 20 years and have been on operations in several theatres, the last being Afghanistan in 2006.

Can you tell us about a recent arbitration matter you worked on of particular interest?

I am engaged in arbitration between Wagners Group (our client) and ValeInco concerning a mining project in New Caledonia. We have just been successful in the Court of Appeal where we defeated an argument that following the principle in Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v Australian Granites Ltd [2001] 1 Qd R 461, the Commercial Arbitration Act (Qld) should apply because UNCITRAL institutional rules were selected, thus contracting out of the Model Law. Recently, the widely-derided Eisenwerk decision has been found by the Supreme Court of NSW to be "plainly wrong".

How are construction/ engineering companies addressing disputes differently post-GFC? Are more construction companies electing to use arbitration in relation to their disputes?

The cost/benefit analysis remains paramount for construction and engineering companies when addressing the resolution of disputes post-GFC. Internationally, the default setting for dispute resolution in construction contracts is arbitration. The default setting in Australia appears to remain at ‘litigation’. With international construction companies starting to do business in Australia, it is inevitable that they will attempt to introduce arbitration provision into their construction contracts. As the recent amendments to the International Arbitration Act appear only to be effective on arbitration agreements made after 6 July 2010, it is unlikely that the effect of this improvement in the international arbitration legislation in Australia will be felt for sometime.

Which global regions do you expect to benefit from the increase in commercial interest in the IA space? How is Australia placed?

Both Singapore and Hong Kong are likely to benefit from the increase in commercial interest in the IA space thanks to their geographic advantage. Australia is well placed to supply legal resources to parties engaged in arbitration, the quality of its contract dispute lawyers is generally high and charge-out rates are low compared with many lawyers in the Northern Hemisphere. Australia may be well placed as an arbitration venue for work carried out in South America because arbitration in the US, for political reasons, may not be attractive.

How is Norton Rose Australia placed to accommodate this kind of activity?

Norton Rose Australia is ideally placed to assist with the inevitable increase in IA activity wherever the seat. We have international arbitration expertise in our Australian offices to service any clients which happen to end up in arbitration in Australia or elsewhere (Matt Croagh of the Melbourne department is currently engaged in an LCIA arbitration in Dubai and London).

Are there memberships/ boards of which you are a member through which you otherwise contribute to your specialisation?

I'm a member of the Institution of Civil Engineers, member of the Chartered Institute of Arbitrators and I have maintained my membership of the Law Society of England and Wales.

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