International Arbitration Experience Statement: Phillip Rompotis

MAY 2021 | CONFIDENTIAL

International Arbitration Experience Statement: Phillip Rompotis

INTERNATIONAL ARBITRATION & DISPUTE RESOLUTION EXPERIENCE STATEMENT CONFIDENTIAL

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Executive summary

Phillip has 26 years’ experience as a specialist international arbitration and construction law practitioner and arbitrator.

He was a Partner in the International Arbitration practice Stephenson Harwood and Head of the Construction and Arbitration Group (Asia), prior to which he practiced exclusively at the Victorian Bar. Phillip now practices as a barrister and arbitrator at the Hong Kong Bar as a member of Prince’s Chambers Hong Kong and a Door Tenant of Chancery Chambers, a leading commercial set in Australia.

Phillip’s practice covers a broad range of commercial industries/sectors including energy, technology, transport, infrastructure and large-scale commercial and residential projects. He has particular expertise in the energy, engineering and construction industry, and associated joint ventures, acting for owners, developers, contractors and industry professionals in high-profile civil engineering disputes utilising court, arbitral, adjudicatory and expert determination procedures.

Phillip has been appointed arbitrator and appeared as advocate in numerous arbitration proceedings, with extensive experience in court-related arbitration proceedings including leading the team which, in the Hong Kong Court of Final Appeal in Astro v Lippo, successfully resisted the enforcement of various Singapore arbitration awards.

Phillip is a Fellow of various arbitration institutes, including the Chartered Institute of Arbitrators and an arbitrator on various Panels and Lists.

Phillip established and runs www.arbitration.site, and www.constructionlaw.site, free resources concerning construction and international arbitration matters from around the world.

Leading Barrister

(Construction, 2020)

”Deep knowledge of arbitration law in Hong Kong and globally.

Sharp intellect and tenacious. ’

“never fails to meet the

needs of clients”

Legal 500 Asia 2017 (Construction)

“adopts an extremely detailed approach and is a

good tactician”

Legal 500 Aisa 2017 (Dispute resolution)

“valued for his ability to understand the

technicalities of the legal situations and guide you

through the matter”

Chambers Asia 2017

Leading Individual

Chambers Asia-Pacific 2016, 2017 & 2018

(Dispute Resolution: China Litigation)

http://www.arbitration.site/


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Qualifications • Bachelor of Laws (Honours)/ Bachelor of Arts (Honours) (1992)

• Admitted as Barrister and Solicitor of the Supreme Court of Victoria (1994)

• Admitted as Barrister and Solicitor of the High Court of Australia (1994)

• Admitted as Solicitor in Hong Kong (1999)

• Called to the Bar in Victoria, Australia (2004)

• Accredited Mediator of the Victorian Bar (2012)

• Granted Higher Rights of Audience and appointed by the Law Society of Hong Kong as Solicitor-Advocate (2015)

• Fellow of the Chartered Institute of Arbitrators; Singapore; Malaysia; Hong Kong

• Fellow of the Hong Kong Institute of Adjudicators

• Admitted to List/Panels of various arbitration institutes: Asian International Arbitration Centre (formerly known as the KLRCA); Chinese European Arbitration Association; Malaysian Institute of Arbitrators; Russian Institute of Modern Arbitration; Saudi Centre for Commercial Arbitration; Thai Arbitration Institute; Kigali International Arbitration Centre; Hong Kong Bar Association List of Arbitrators.

Positions Held

• Barrister and Arbitrator at Prince’s Chambers, Hong Kong

• Door Tenant at Chancery Chambers, Melbourne

• Former Head of Dispute Resolution at Cordells Rompotis (2017-2018)

• Partner in the International Arbitration Group and Head of the Construction and Arbitration Group (Asia) at Stephenson Harwood (2013-2017)

• Member of the Construction, Property and Infrastructure Committee of the Australian Chamber of Commerce (2013 - 2017)

• Committee member of the Law Society of Hong Kong Arbitration Committee (2014 – 2018)

• Appointed by the Higher Rights of Audience Board (Hong Kong) as Panel Examiner for solicitors seeking higher rights of audience (2016 – 2018)

Phillip Rompotis

T: +852 6606 8034

E: [email protected]

mailto:[email protected]


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Dispute Resolution

Formal Appointments as Arbitrator/Mediator

1. Appointed as Arbitrator in respect of a broad range of commercial disputes (in excess of 25

appointments), including:

a. Appointed as co-arbitrator in 3-panel Tribunal in expedited arbitration proceedings

under the auspices of the HKIAC in relation to a contract between a listed PRC state owned gas company and Ethiopian entities regarding the supply of sophisticated monitoring equipment (wireline logging and perforation equipment), materials and specialist labour for an oil/gas project undertaken in Ethiopia.

b. Appointed as sole arbitrator in arbitration proceedings under the auspices of the Singapore International Arbitration Centre (SIAC) in relation to a put option agreement between a listed Singapore entity and a Mainland China entity for the sale of shares in a joint venture operating medical facilities in Mainland China.

c. Appointed as co-arbitrator in 3-panel Tribunal in arbitration proceedings under the auspices of the HKIAC in relation to a shareholders/cooperation agreement providing for the construction of a hotel and various property related issues between two Mongolian entities and a related individual.

d. Appointed as sole arbitrator in international arbitration proceedings under the auspices of the HKIAC between PRC based company and Laos based company in relation to sale of goods (construction machinery), pursuant to a contract governed by PRC law.

e. Sole arbitrator in shareholder dispute arising out of a joint venture between Indonesian and Chinese equity investors and local commercial contractor in respect of a USD$35m commercial property development involving complex shareholding arrangements and claims for restitution.

f. Sole arbitrator in shareholder dispute arising out of a joint venture between Chinese-based investors and prominent businessman for the construction of a USD$20m food processing plant in regional Victoria, involving partnership law, equitable claims for restitution, allegations of fraud and bribery.

g. Sole arbitrator in dispute between joint venture commercial contractors concerning

ownership of assets and entitlements to payment following termination of building

contract by employer concerning the construction of a major USD$35m regional

shopping centre pursuant to the standard ACICA (Australian Centre for International

Commercial Arbitration) Rules.

h. Sole arbitrator in dispute between State Government Department and long term

leaseholder of ski fields concerning ownership of assets, sale of goods, insurance

issues, government guarantees, etc., following regional bushfires pursuant to the

UNCITRAL Arbitration Rules.

i. Sole arbitrator in two separate arbitration proceedings between employer and contractor concerning the construction of major industrial food production premises valued at

USD$15m, pursuant to ad-hoc arbitration rules based on SIAC Arbitration Rules.


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2. Numerous appointments (in excess of 30) as Sole Mediator in a broad range of commercial disputes, including:

a. shareholder dispute arising out of a joint venture between Thai based private equity

investors and local construction company in relation to the construction of a USD$15m high rise residential/commercial complex in Western Melbourne.

b. shareholder dispute arising out of joint venture agreements entered into by prominent

commercial construction company in relation to construction of USD$50m residential tower.

c. dispute arising from a tripartite agreement between pension fund employer, prominent

commercial contractor and financiers involving enforcement of on-call performance bonds for failure to adequately progress works during the construction of a USD$30m regional shopping centre.

d. disputes in the property and construction sector including (i) proceedings involving

employers and contractors for extra time, extra payment, defective works, etc; and (ii) landlord and tenant disputes in relation to market rent payable under open market rent review provisions.

Advocacy Practised exclusively as a barrister in Australia between 2004 and 2012 (and in Hong Kong since April 2019), with a broad-based commercial law practice focusing on building, construction, engineering and joint venture matters, energy and property, appearing for shareholders, partners, contractors, principals, banks, insurers, engineers, architects, landlords, tenants and liquidators before various Tribunals and Courts. Legal areas of expertise include arbitration, joint ventures, sale of goods, shareholder disputes, contract, torts, partnerships, insolvency, damages, insurance, property, leasing, town planning. Extensive experience in cross-examination of both factual witnesses and experts.

Arbitration

1. Appointed as counsel in HKIAC arbitration proceedings concerning claims under two distributorship agreements in the textile industry, valued at approx. USD$5m.

2. Appointed as counsel in ICC arbitration proceedings concerning claims for payment under a distributorship agreement arising out of supply of aircraft parts against one of the world’s largest aircraft manufacturers; the relevant contract is governed by Hong Kong law and concerns the sale and purchase of high-value items and the interplay between arbitration proceedings and corruption/bribery allegations.

3. Appointed as Counsel in arbitration proceedings brought under the auspices of SIAC on behalf of a subsidiary to a Hong Kong listed company owned by PRC interests in relation to the sale and purchase of over 1m barrels of crude oil from the Middle East.

4. Acted as lead solicitor and advocate for UK-based investor in a Hong Kong joint venture company, established to invest in a PRC WFOE engaged in the public relations sector in the PRC. Matter concerned complex joint venture arrangements, intellectual property and licensing issues, enforcement of final arbitration award in the PRC. Matter arbitrated before a sole Arbitrator appointed by the HKIAC, pursuant to the UNCITRAL Arbitration Rules.


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5. Acted for a Hong Kong liquidator in relation to the liquidation of a Hong Kong/China sub-contractor, including claims for retention moneys and variations. Arbitration proceedings under the auspices of the HKIAC and associated HKIAC rules.

6. Acted for subsidiary of Hong Kong conglomerate in the largest rent review arbitration in

Hong Kong relating to 1.2m+ sq.ft. industrial premises in Kwai Chung involving sums in excess of HKD$1b. Matter concerned complex property and contract law principles, involved extensive factual and expert evidence, numerous interlocutory applications. Matter was arbitrated before a sole arbitrator and technical expert assessor in the HKIAC over an 11-day period pursuant to ad-hoc rules based on the HKIAC/UNCITRAL arbitration rules.

7. Acted for the Government of Hong Kong in relation to proposed proceedings arising out of

the construction of the HKD$5.5 billion Central Reclamation Phase III civil engineering project and Central to Wanchai by-pass, comprising 28 individual legal and technical claims.

8. Numerous other appointments as lead counsel/advocate in Arbitration proceedings,

including:

(a) Dispute between Indian-based employer and contractor relating to the calling of performance bonds during the construction of US$15m regional food processing plant and commercial premises. Matter was arbitrated pursuant to the ACICA (Australian Centre for International Commercial Arbitration) Rules, was the subject of a 5-day hearing before a sole Arbitrator and involved extensive cross-examination of factual and expert witnesses.

(b) Dispute arising from a joint venture between Chinese-based equity investor and

property developer in relation to a AUD$30m development involving the purchase of greenfield agricultural land, rezoning and development into residential and commercial premises in growth area, involving land title and town planning issues. Matter was arbitrated pursuant to the ACICA Rules and the subject of a 9-day hearing.

(c) Various disputes between developers of the Docklands residential project and

retail investors involving alleged misrepresentations by developer and banking institutions. Arbitrated pursuant to the expedited ACICA Rules in a 7-day hearing before a sole Arbitrator and involved cross-examination of numerous factual witnesses.

(d) Numerous appointments for owners and contractors in “traditional” building and

construction claims involving sale of goods, claims for extension of time, additional payment, assessment of variations, liquidated damages, performance bonds, warranties, assignments, etc. in relation to a range of projects including high rise residential buildings, commercial buildings, mixed use buildings, property joint ventures and domestic construction.

9. Acted for liquidator in relation to arbitration proceedings arising out of the liquidation of a major Hong Kong contractor, including drafting Notice of Dispute and drafting claims for retention money, costs associated with owner’s prevention, defending liquidated damages claims, preparation for arbitration proceedings in Hong Kong and settlement of matter.

10. Acted for prominent architect in relation to arbitration proceedings arising out of foundation piling defects in Tin Shui Wai, New Territories. Managed a large team of lawyers; matter involved breaches of contractual obligations, professional negligence, complex insurance issues and management of eventual insolvency of architectural practice.


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11. Acted in numerous building, construction and engineering matters brought by main and sub-

contractors for loss and expense, delay and variations in arbitration proceedings pursuant to various arbitration rules (UNCITRAL, HKIAC, SIAC), including:

• for main contractor in appeal by the Hong Kong Government against arbitration award;

• for international joint venture tunnelling contractor in relation to a claim arising out of the construction of underground sewerage tunnels for the Hong Kong Government;

• for arbitrator in relation to proceedings commenced by one of the parties for removal due to misconduct;

• for main contractor in relation to arbitration proceedings brought against the Government of Hong Kong arising out of the construction of Queen Mary Hospital, Hong Kong, including leave to appeal application to the Privy Council in London;

• for joint venture contractor in relation to arbitration proceedings brought against designer for negligent bridge design (Ting Kau bridge).

Litigation

1. Acting as counsel for Hong Kong based construction foundations company in High Court proceedings against main contractor for payment of additional costs and variations concerning a premium residential development. Matter includes variety of legal issues, including time at large and defending large claim for liquidated damages.

2. Acting as counsel in respect of a High Court proceedings concerning design and copyright issues arising out of the construction of the Hong Kong – Macau – Zhuhai bridge.

3. Acting as counsel for Hong Kong based company in an application to intervene in unfair prejudice proceedings in the High court.

4. Acting as counsel in Hong Kong High Court proceedings commenced by a Hong Kong company against a PRC company and various individuals for breach of director’s duties and misappropriation of PRC business.

5. Appeared as lead advocate (opposed to two Senior Counsel) in 11-day hearing before DHCJ Mayo in garnishee proceedings relating to a joint venture agreement between prominent Indonesian and Malaysian joint-venturers in the telecommunications industry and relating to an application in Hong Kong to resist enforcement of five SIAC-based arbitration awards; decision reported as Astro Nusantara International BV and Ors v PT Ayunda Prima Mitra and Ors [2014]; 1 HKLRD 197.

6. Acted for Indonesian conglomerate in relation to high profile international commercial dispute with Malaysian conglomerate arising out of a joint venture agreement (shareholders and subscription agreement) valued at USD$250m, with court proceedings in England, Malaysia, Singapore and Hong Kong. Drafted numerous written submissions in relation to a host of applications and in excess of 20 hearings over a 6 year period. Matter has received extensive publicity and is the subject of a number of reported decisions from the Court of First Instance, Court of Appeal and Court of Final Appeal, including:

• Astro Nusantara International B.V. and Others v. PT Ayunda Prima Mitra and Others [2014] 1 HKLRD 197 (31 October 2013); [2014] HKCFI 136 (24 January 2014); [2015] HKCFI 274 (17 February 2015); [2016] 1 HKLRD 591 (8 December 2015);


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• Astro Nusantara International B.V. and Others v. PT Ayunda Prima Mitra and Others [2014] HKCA 700 (25 June 2014); [2015] HKCA 420 (2 September 2015); [2016] HKCA 595 (5 December 2016); [2017] HKCA 133 (29 March 2017);

• Astro Nusantara International B.V. and Others v. PT Ayunda Prima Mitra and Others [2017] HKCFA 50 (18 August 2017);

• Astro Nusantara International B.V. and Others v. PT Ayunda Prima Mitra and Others [2018] HKCFA 12 (11 April 2018).

7. Appeared for Gas Transmission Services WA (Operations) in relation to complex pleading issues arising out of pleas of agency, estoppel and common enterprise between subsidiary and parent company and ability of the Court to pierce the corporate veil arising out of an energy project concerning the construction of a power plant. Briefed as Junior Counsel to Hugh Foxcroft QC; matter is reported as McConnell Dowell Constructors (Aus) Pty Ltd v Gas Transmission Services WA (Operations) Pty Ltd & Ors [2007] VSC 301.

8. Acted for Alstom Power in relation to a joint venture for the construction of a power station in Adelaide, South Australia, concerning the calling of irrevocable bank guarantees and on-call performance bonds, and express and implied contractual obligations pursuant to contract and the Trade Practices Act. Briefed as Junior Counsel to Dr. Gavan Griffith QC (ex-Solicitor General of Australia); the matter is reported as Alstom Power Ltd v Yokogawa Australia Pty Ltd & Gas Transmission Services WZ (Operations) Pty Ltd & Ors (No.4) [2006] SASC 298.

9. Acted for the Government of Hong Kong in relation to HK$1 billion Court proceedings arising out of the construction of Central Reclamation Phase I civil engineering harbour waterfront project involving complex property/land grant issues, complex contractual agreements, cross border investment issues, geotechnical/engineering issues and complex land premium issues requiring parallel expert determination and valuation proceedings.

10. Acted as solicitor and counsel for Hong Kong private equity investment company in relation to various proceedings commenced by landlord in relation to a stand-alone private residence valued at over HK$250m in Bowen Road, Mid-Levels.

11. Acted for Hong Kong listed company in relation to USD$50m dispute concerning the construction and operation of an iron ore mining facility in Malaysia. Arbitration proceedings commenced and injunctions in Malaysian court obtained.

12. Acted for major contractor in relation to the redevelopment of major railway station, one of the largest PPP infrastructure projects undertaken in Australia. Advised in-house counsel and external solicitors in relation to complex contractual framework, public private partnership agreements, concession agreements, various shareholders agreements, project and design briefs, and prospects of major claims for compensation against the Victorian State Government. Briefed as Junior Counsel to Mr. Hugh Foxcroft QC.

13. Acted for state-owned water utility company in relation to USD$100 million claim for variations arising from the construction of sewer tunnels and subsequent claim for additional payment due to unforeseen ground conditions and forfeiture of contract. Matter was initially the subject of arbitration proceedings and, by consent, transferred to the Supreme Court.

14. Appeared as lead advocate in complex proceedings commenced by foreign and Australian- based investors into various “friendly” football matches between European and South American based international football teams promoted by representatives of the Federation International Football Federation (“FIFA”) in a AUD$6m+ damages claim and applications for relief for reputational loss. Responsible for overall strategy on behalf of investors, drafted


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all necessary court documentation, appeared at various interlocutory hearings negotiated and drafted settlement agreement.

15. Acted for a prominent commercial contractor, responsible for setting up and managing their overall legal requirements including all sales and purchase of machinery, property negotiations for leases in respect of various properties (both as landlord and tenant), drafting of leases, drafting a suite of contracts including sale of goods, design and build and management contracts, maintenance contracts, consultancy agreements and all associated contracts (novation, assignments, deeds of guarantee, etc). Negotiated and drafted all ancillary documents including deeds, joint venture agreements, shareholder agreements, tripartite agreements, bonds and guarantees.

16. Numerous additional appearances as lead advocate in reported decisions, including: Becon Construction (Aust) Pty Ltd v Richmond Commercial Pty Ltd, County Court of Victoria (Shelton J), 8th September 2010; Clements v Barlow & Wilbur, VCAT 21st July 2010 (extent of contractual indemnities; probative value of evidence); M B Marlow Engineering v Alliance Constructions Australia & Commercial Industrial Construction Group Pty Ltd [2009] VCC 0832 (a decision of Shelton J in the County Court of Victoria); C & J Mortgages Pty Ltd v Neville [2009] VCAT 984 (9 June 2009); Borg v Cassar [2005] VCAT 2908 (13 December 2005).

17. Lead advocate for a prominent residential/commercial building contractor, in relation to proceedings arising out of the construction of a 15 level residential/commercial tower valued at USD$30m. Proceedings involved enforcement of contractual terms in relation to payment, calling of bank guarantees, claims for additional costs for variations, defending liquidated damages claims, ex-parte mareva injunctions, statutory demands and liquidation of proprietor.

18. Lead advocate for engineering consultant in relation to Supreme Court proceedings against the main contractor arising out of the redevelopment of the Melbourne Cricket Ground. Briefed as junior Counsel to Richard Manly QC. Matter involved contractual advice work, drafting of various court documentation, negotiations and appearances at mediation and drafting of settlement agreements.

19. Lead advocate in range of commercial disputes, including:

• for insurance company in relation to claims brought by homeowners for negligent design and construction, involving insurance coverage and technical issues, including appearing at numerous mediations;

• for contractor in relation to a class action claim against them by owners of a residential complex for damages arising out of alleged foundation movement. Matter involved drafting all relevant court documents, advice work, technical analysis of expert advice, and appearance at various tribunal/court hearings;

• for a telecommunications company in relation to Supreme Court proceedings brought against them by the main contractor, in relation to a claim for additional payment arising out of the construction and installation of underground cabling throughout the Melbourne central business district;

• for contractor in relation to County Court proceedings against an individual resulting in various injunction applications including ex parte mareva injunction.

Transactional


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1. Negotiated and drafted a bespoke turnkey contract for the design, supply, installation and commissioning of a gas-fired combined cycle with an approximate capacity of 120MW and associated documentation; long term service agreement associated with gas turbines, alternators and associated auxiliaries; operation and maintenance contract for major Korean contractor for project in Nouakchott, Mauritania, West Africa for the Societe de Production d’Electricite a partir du Gaz (SPEG), involving construction works in excess of US$300m.

2. Negotiated and drafted all relevant documentation (including tripartite deed, construction contract, management and service agreements) in relation to the financing, design and build of major commercial shopping centre and residential development, with works valued

in excess of US$75m

3. Assisted Hong Kong/Australian listed mining company in relation to equity investment into iron ore assets, involving complex shareholder arrangements, drafting of construction documentation for construction of port/rail facilities, and proposed arbitration proceedings

against one of Australian’s largest iron ore producers

4. Negotiated and drafted contract documentation in relation to a range of gaming and

commercial fit-out contracts and A & A works in Hong Kong and Macau including

• For major Hong Kong conglomerate in relation to cold store facilities, valued at USD$5m;

• for a New York based international bank, comprising the design and build of commercial premises, valued at US$8m;

• for a global insurance company, comprising project managed works, valued at US$5m;

• for a global bank, comprising design and build works, valued at US$15m;

• for an Architect/main consultant in relation to US$20m A&A works to various casinos

in Macau;

• for global data centre operator in relation to works valued in excess of US$15m;

• for a school in relation to the design and build of major renovations and additions to

school premises, with works valued in excess of US$15m.

5. Drafted numerous individual and standard form based domestic building contracts for renovation and construction of residential and commercial premises including negotiating and drafting project management agreement for purchase of land and construction of Victoria beachside resort.

Selection of Publications & Seminars

• Founder and current administrator of www.arbitration.site, and www.constructionlaw.site, online resources containing case law updates in relation to building & construction and international arbitration matters. As at April 2021, the services boast a membership in excess of 3,000 practitioners from around the world and is sponsored by leading law firms.

• Author of “Construction Arbitration”, chapter in “Construction Arbitration in Hong Kong: A Practical Guide”, a collection of chapters written by a number of selected Hong Kong construction practitioners, published by Wolters Kluwer CCH in April 2015

• Enforcement of arbitration awards: Is there a difference between awards set aside or refused recognition in the seat? PT First Media v Astro (August 2017)

http://www.arbitration.site/

http://www.constructionlaw.site/


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• Re-measurement clause considered by the High Court: Chan Chi Lam v Lam Woo & Co Ltd [2017] HKCFI 421 (August 2017)

• Hong Kong Court rejects set aside application: U v A and others [2017] HKCFI 398 (August 2017)

• Design & Build Design Liability: MT Højgaard A/S v E.ON Climate & Renewables & Ors

[2017] UKSC 59 (August 2017)

• Rejection of a Set Aside Application: Arjowiggins HKK2 Limited v X Co [2016] HKCFI 1901 (December 2016)

• Caution when suspending contract works and reducing scope and price: Ipson Renovation

Ltd v The IO of Connie Towers [2016] HKEC 2719 (December 2016)

• Court of Appeal Revisits Model Law Setting Aside Provisions: Tronic International Pte Ltd v.

Topco Scientific Co. Ltd & Ors [2016] HKCA 371 (December 2016)

• Lessons in Complex Construction Litigation: Chun Wo v Metta Resources Ltd [2016] HKCFI

1357 (October 2016)

• Hong Kong Court Affirms Its Support Towards Enforcement Of Arbitration Award: KB v S and

Others [2015] HKCFI 1787 (15th September 2015

• Article 34 of The Model Law - Public Policy and Remission to an Arbitrator Where a Material Point is Not Dealt with By an Arbitrator, Conventus Law, 11th August 2015

• Could Arbitration Be Held Where Agreement Nominated China As The Seat and Chinese Law as Governing Law, Conventus Law, 29th April 2015

• Investment Treaty Arbitration in Asia, The Way Forward for Asia, Conventus Law, 15th October 2014

• Arbitrating International Disputes in South East Asia: Current Best Practice and Potential Reform, International Arbitration Seminar, Singapore, 3rd December 2013, Panel speaker, “Joinder issues in Construction Arbitration”

• An Overview of Expert Evidence in Arbitration/Litigation, presentation to the Quantity Surveying Division of the Hong Kong Institute of Surveyors (6th December 2012)

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International Arbitration Experience Statement: Phillip Rompotis

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