Professional practice

Ricky Diwan QC is a leading practitioner in the field of international commercial and investment arbitration and related court applications. He appears as counsel in international commercial and investment arbitrations both in London and many different arbitral seats abroad under a wide variety of laws and arbitral rules (including ICC, LCIA, SIAC, UNCITRAL and ICSID). He has substantial experience of seeking emergency relief under both the LCIA and ICC Arbitration Rules and making related relief claims before the English Court. He also regularly sits as an arbitrator in international arbitrations. Being an OCI (Overseas Citizen of India) he regularly visits India and is able to provide services to Indian clients in India at short notice (given the absence of visa requirements or restrictions). He regularly appears before the English Court at all levels and has argued many applications under the Arbitration Act 1996 relating to jurisdiction (s.67), procedural irregularities (s.68) and recognition and enforcement domestically (s.66) and under the New York Convention 1958 (s.100 and following).

He is currently writing a practitioner’s text on the Arbitration Act 1996 and Common Law Principles of Arbitration, which will be published by Oxford University Press (which will likely be published in early 2020) and is one of the co-authors for the next edition of Mustill & Boyd. He co-drafted the Mauritian International Arbitration Act 2008 and advised on the LCIA-MIAC arbitration rules. He co-authored (with VV Veeder QC) the ICCA International Handbook on Commercial Arbitration for England & Wales published in December 2015.

He has been consistently recommended in leading legal guides in international arbitration. In the 2018 Chambers & Partners Guide he was described as “highly regarded for his international arbitration practice, which concentrates on commercial and investment issues”; in the 2017 Who’s Who Legal UK Bar he was described as: “ draw[ing] praise for the rate at which he has developed a very strong practice in both international commercial and investment arbitration with one source claiming, “He is one of the best young silks around”. In the 2016 Who’s Who Legal UK Bar it was said: “Outstanding Ricky Diwan QC emerges as one of the leading lights in our research and specializes in international commercial arbitration both in London and abroad under a range of laws.” In Chambers and Partners (2017) he was ranked in the field of international arbitration and described as “meticulous, extremely hard-working and always on top of all the detail.”

Recent work includes:

  • Court applications:

Successful in New York Convention proceedings in demonstrating that the majority tribunal had applied the wrong law to questions concerning the validity of the arbitration agreement and capacity to contract and misconstrued the contract (as that related to jurisdiction) and successful in resisting an application for security: J v K [2019] EWHC 899 (Comm).

Successfully setting aside an investment treaty arbitral award under s.67 of the Arbitration Act 1996: GPF GP SARL v Republic of Poland [2018] 1 Lloyd’s Rep 410). Mr Diwan was short listed for the 2019 Gar Awards in respect of this case, as being one of the most important cases of the year.

Currently acting as counsel applying to set aside an investor state jurisdictional award under s.67 of the Arbitration Act 1996, which raises wide ranging issues of treaty interpretation concerning classical issues of jurisdiction.

  • Arbitration as counsel (commercial and investment):

Presently acting as counsel for the Democratic Socialist Republic of Sri Lanka in ICSID proceedings brought under the UK-Sri Lankan BIT, raising jurisdictional and substantive questions, with the jurisdictional phase having now proceeded to a hearing.

Presently acting as counsel in a major infrastructure development project arbitration (ICC) involving an African State and a Chinese state entity.

Presently acting as counsel in a major oil and gas dispute (UNCITRAL Rules) between a private entity and state owned company.

Presently advising with respect to dual contractual and investment claims being pursued by way of international commercial arbitration and investor state arbitration against an African state.

  • Arbitration as arbitrator:

Presently acting as arbitrator in a number of international commercial arbitration disputes (both chair and co-arbitrator) including arbitral disputes relating to hotel development projects, mobile telecommunications and oil and gas.

Prior to being called to the bar and joining Essex Court Chambers in 1998, he was admitted to the New York Bar and practiced as a qualified attorney-at-law at Debevoise & Plimpton (New York) between 1995 and 1997.

 

What others say

Chambers & Partners (2018)

“Highly regarded for his international arbitration practice, which concentrates on commercial and investment issues.”

Legal 500 (2018)

“An excellent silk who lives and breathes arbitration.”

Examples of notable cases

Court applications related to arbitration

J v K [2019] EWHC 899 (Comm). Recognition and enforcement proceedings under the New York Convention raising issues under Article V(1)(a) and VI and issues of security.

GPF GP SARL v Republic of Poland [2018] 1 Lloyd’s Rep 410. Application under section 67 of the Arbitration Act 1996 challenging an investor state award raising issues of approach to section 67 rehearing, treaty interpretation, principles of customary international law on expropriation and the application of the pro-tem principle.

Petroleum Company of Trinidad v Tobago v Samsung Engineering [2017] EWHC 3055. Application under section 67 of the Arbitration Act 1996, raising questions regarding jurisdiction over cross-claims.

Gerald v Timis Trust [2016] EWHC 2327. Application under section 44 of the Arbitration Act 1996 raising issues of the interaction of the court’s powers under section 44 and the emergency powers under the LCIA Rules.

A v B [2015] 2 ALL ER (Comm) 85 (Teare J). Jurisdictional rehearing under section 67 of the Arbitration Act 1996 concerning issues of whether the agreement was signed or forged and interpretation of the arbitration agreement.

Y v S [2015] 1 Lloyd’s Rep 703 (Eder J). Application for recognition and enforcement of an arbitral award under section 66 of the Arbitration Act 1996 raising issues of the interpretation of CPR 62.18 in the context of the New York Convention and related issues as to the court’s powers to order security.

Wilson v Assaubayevs [2015] CP Rep 10 (Court of Appeal) (Lady Justice Black, Lord Justice Aikens, Lord Justice Clarke). Raising issues as to the scope of the doctrine of arbitrability and the case management of arbitrable and non arbitrable claims under section 9 of the Arbitration Act.

Travis Coal Restructured Holdings LLC v Essar Global Fund Ltd [2014] 2 Lloyd’s Rep 494 (Mr Justice Blair). Resisting recognition and enforcement of an international arbitration award under the New York Convention, raising issues of New York law and the circumstances in which it was appropriate to grant security.

Polski Koncern v Yukos International [2013] Folio 736 (Comm) (His Honour Judge Mackie QC). Successful application on paper pursuant to O8.8 of the Commercial Court Guide applying on paper to dismiss an application under section 68 of the Arbitration Act 1996.

Enercon GMBH v Enercon (India) Ltd [2012] EWHC 3711 (Comm) (Mr Justice Cooke). Application for the appointment of an arbitrator under s.18 of the Arbitration Act 1996 raising issues as to the interpretation of an arbitration clause, and in particular the seat of the arbitration, and parallel English and Indian proceedings.

Assaubayevs v Wilson [2012] EWHC 350 (Comm) (Mr Justice Field). Successful application for anti-arbitration injunctive relief under the court’s inherent jurisdiction.

Petrochemical Industries Co (KSC) v Dow Chemical Company [2012] EWHC 2739 (Comm) (Mr Justice Andrew Smith). Resisting application under section 68 of the Arbitration Act 1996 challenging an arbitral award on the grounds that the tribunal failed to address an ‘issue’ raised; meaning of the term ‘issue’ for the purposes of section 68 of the Arbitration Act 1996.

Dowans Holding SA & Dowans Tanzania Ltd v Tanzania Eletric Supply Co Ltd [2011] 2 Lloyd’s Rep 475 and 2012 [EWHC] 350 (Comm) (Mr Justice Burton). Application for recognition and enforcement of an international arbitration award and cross-application for security, raising issues as the meaning of the term ‘binding’ under the New York Convention, Tanzanian law and evidential issues as to assets.

Tamil Nadu Electricity Board v ST-CMS Electric Company [2008] 1 Lloyd’s Rep 93 (Mr Justice Cooke). Trial of a s.72 application as to whether or not a London arbitration clause should be displaced on the basis of alleged mandatory provisions of Indian electricity law to the effect that the capital costs of a power plant built by my client had to be assessed mandatorily by a Tamil Nadu State Board (under the Indian Electricity Act 2003) in preference to the London arbitration clause 5.

Elektrim v Vivendi [2007] 2 Lloyd’s Rep 8 (Mr Justice Aikens). Resisting application for anti arbitration injunctive relief pursuant to s.37 of the Supreme Court Act. Raised issues as to the scope of the Courtos powers under s.37 in light of s.44 of the Arbitration Act 1996

IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2005] 2 Lloyd’s Rep 326 (Mr Justice Gross). Applications for enforcement of an international arbitral award alternatively security, under the New York Convention, raising issues as to the proper approach as to the interpretation of the New York Convention and the grounds for resisting enforcement.

International Commercial and Investment Arbitration

International Commercial Arbitration

  • Counsel for a Hong Kong incorporated company in a major infrastructure dispute involving a state and state entities, ICC Rules.
  • Counsel for Turkish company in oil and gas dispute, ICC Rules, Turkish seat, Turkish law.
  • Counsel in international commercial arbitration proceedings against Iranian state entity, (Hague, UNCITRAL Rules), raising issues of Iranian law.
  • Counsel for Swiss commodities company relating to claims under a guarantee: LCIA Rules.
  • Counsel for a Kuwaiti company relating to franchise arrangements: ICC Rules, Paris seat. Counsel for oil companies raising decommissioning issues and allocations of expenditure: ad hoc arbitration.
  • Counsel for a Caribbean government in a substantial joint venture dispute with a South American aluminium company relating to the engineering, design and construction of an aluminium smelter and downstream facilities pursuant to a long term joint venture agreement raising issues of fact, jurisdiction and DCF valuation issues: ICC Rules, Miami seat and London seat (two related arbitrations). Claims in excess of USD 100 million. Counsel for a mining company against an African government relating to a long term concession for natural resources raising issues as to the interpretation of a stabilisation clause in a production supply agreement (PSA), and international law issues (included issues of Fair and Equitable Treatment): UNCITRAL Rules, London seat. Claims in excess of USD 400 million.
  • Counsel for an Indian company in dispute with a German company relating to the supply of high tech manufacturing equipment raising complex engineering issues: ICC Rules, Singapore seat. Claims in excess of USD 40 million.
  • Counsel for a company being part of a Swiss insurance group, relating to its acquisition of a Russian insurance company, raising issues of Russian law, and warranty and indemnity claims: LCIA Rules, London seat.
  • Counsel for a mobile telecom operator relating to a loan agreement governed by New York law: LCIA Rules, London seat. Claims in excess of USD 400 million.
  • Counsel on behalf of a Malaysian company relating to the acquisition of an Indian mobile telecommunication operator: SIAC Rules, Singapore seat. Claims in excess of USD 250 million.
  • Counsel on behalf of a Caribbean government in a dispute relating to the supply of military vessels raising factual and technical issues relating to the accuracy of the military hardware:
  • ICC Rules, London seat. Claims in excess of USD 70 million.
  • Counsel on behalf of an African government in an oil pipeline related dispute pursuant to a long term concession agreement raising Sudanese law issues: UNCITRAL, London seat.
  • Claims in excess of USD 1 billion.
  • Counsel against an African government relating to an emergency power supply agreement raising inter alia issues of state responsibility: ICC Rules, Tanzanian seat. Claims in excess of USD 65 million.
  • Counsel for a French mobile operator against a German mobile operator in contractual and tortious disputes under Polish law: VIAC, Vienna seat. Claims in excess of Euro 2 billion.

International Investment Arbitration

  • Counsel in ICSID proceedings on behalf of the Democratic Socialist Republic of Sri Lanka; Counsel in investment treaty arbitral proceedings arising out of a joint venture, UNCITRAL Rules (private).
  • Counsel advising on investment treaty claims arising out of the Russian annexation of Crimea (private);
  • Counsel advising on the interrelationship between stabilization clauses and legitimate expectations under an investment treaty (private);
  • Counsel in an UNCITRAL arbitration relating to natural resources raising issues of fair and equitable treatment and interpretation of stabilisation clauses (private); Counsel advising on claims arising under the Energy Charter Treaty.

International Commercial Litigation

  • Counsel in a dispute concerning the Libyan Investment Authority raising the question as to who is the government of Libya and related issues of foreign relations law and justiciability. See Bouhadi v Breish [2016] EWHC 602; Libyan Investment Authority v Societe Generale [2015] EWHC 1720 and [2015] EWHC 1925.
Career

Called to the Bar of England & Wales: 1998

Admitted as an Attorney and Counsellor at Law by the State of New York: 1996

Education

Cambridge University, Trinity College (1991-1994)

BA (Law), First Class Honours (Parts 1A, B & Part II)

Trinity College Senior and Junior Scholarships

Van Heyden Prize for Academics

ECS Wade Prize for Administrative Law

Harvard Law School, Cambridge Massachusetts, USA (1994-1995)

LL.M. (1994)

Holland Fund Scholarship awarded by Trinity College, Cambridge University for study at Harvard Law School

Inns of Court School of Law, Lincoln’s Inn, London (1997-1998)

Lord Denning Scholarship, Lincoln’s Inn

Lord Mansfield Scholarship, Lincoln’s Inn

Bar Association Prize for Commerce, Finance & Industry CCH Editions Prize for Company Law

Finalist of the Robert Wright Mooting Competition