From an early age, Martin Polaine wanted to be a barrister. Despite coming from a family with no lawyers, it’s an ambition he credits to a love of robust discussions and extensive viewing of ‘Crown Court.’
Insights caught up with Martin Polaine to find out how he transitioned from criminal advocate to international arbitration lawyer and arbitrator, a career he’s now helping others to develop as part of his postgraduate College of Law courses in International Arbitration Practice, which provides a pathway to Chartered Instituted of Arbitration (CIArb) membership.
From ‘class judge’ and criminal advocate to international law
Martin Polaine is pleased to helm The College of Law’s two International Arbitration Practice subjects. The first subject provides graduates with eligibility for CIArb membership, which would otherwise require five years’ experience in the field.
“The College is the only CIArb Recognised Course Provider in Australasia,” said Martin. “It provides a brand-new pathway to an arbitration career for lawyers interested in expanding their practice.”
Martin always fostered a healthy interest in advocacy.
“At five, my teacher told me I was the ‘class judge,’” shared Martin, bemused. He studied history at university and enjoyed acting. “At one point, I was torn between a career in the theatre and the law. Most lawyers are basically frustrated actors!”
He became a criminal advocate.
“I had absolutely no career plan as to how I would progress through the legal profession,” he admitted. “I enjoyed both prosecuting and defending, but I’m much more of a defender. I did quite a lot of international law and started getting involved in military prosecutions in various parts of the world.”
This led to a significant fraud and corruption case. As a result, his work assumed more international dimensions, expanding to public international law, which now comprises a considerable part of Martin’s practice.
“Public international law then led me investment arbitration and in turn to commercial arbitration,” said Martin.
According to Martin, leaving aside state to state disputes, there are two forms of international arbitration: international commercial arbitration and state-investor arbitration.
“State-investor arbitration is predicated upon public international law principles and involves an external investor investing in a state - for example, a corporate investor funding the mining industry in a state. Conflict could occur if, for instance, the state intervenes and nationalises the mines,” explained Martin. “As an area of law, it has evolved. Some countries don’t like state investor-arbitration because they think it’s too skewed towards large corporate interests.”
“Although state-investor arbitration is more ‘public’ and transparent than international commercial arbitration, you still operate within a private process,” explained Martin. “There’s a real intellectual challenge to both forms of arbitration, and I’ve become more and more engaged in the process.”
The freedom to shape proceedings through arbitration
The private nature of arbitration is what has seen it increasingly preferred by parties in a commercial dispute.
“One of the attractions to parties is that they can shape the proceedings to an extent via an arbitration agreement. Where they can’t shape it, the arbitrator steps in,” said Martin.
As a legal exercise, it can be fascinating and complex.
“With commercial arbitration, you have a number of laws to consider – the governing law of the contract, the law governing the arbitration agreement, the law of the state, or even states, where you’re looking to get recognition or enforcement of the award, and the law of the jurisdiction in which arbitration is taking place (the law of the ‘seat’).”
“As an arbitrator, you don’t feel like a judge,” said Martin. “Yes, by issuing an award, you are reaching a decision. However, as you’re part of a private party process, you’re there at the behest of the parties. It somehow feels different. This is one reason why I chose arbitration.”
Martin still keeps up other areas of practice. This includes capacity building for developing states, work for NGOs such as Transparency International, and providing advice to help states domesticate their international treaty obligations.
“I’ve worked in over eighty countries,” said Martin. “Around thirty of these are African nations. I’ve also worked extensively in Asia Pacific.”
A high growth, international career
Arbitration is growing rapidly. Major arbitration centres are based throughout the world, with traditional hubs in Paris, Switzerland, Stockholm and New York.
“From an arbitration standpoint, Asia is big news,” observed Martin. “The Singapore International Arbitration Centre is a major arbitration centre and markets itself as such. Malaysia, Thailand, South Korea, and Japan are building their capacity. The Hong Kong International Arbitration Centre is particularly significant, while China has a number of arbitral institutions and arbitration initiatives, many focused on resolving Belt and Road disputes.”
Each arbitral institution has its own set of arbitration rules, explained Martin.
“The New York Convention provides an international framework for the recognition and enforcement of arbitration agreements,” said Martin. “This means not just a global enforcement mechanism, but also very little scope to challenge an arbitral award, and you should not be able to go behind an arbitration agreement to litigation.”
Arbitration institutions provide a venue, administrative support, a scale of fees for arbitrators, and institutional rules to fill any procedural gaps.
“You still often have considerable flexibility to allow parties to agree to other rules or shape the proceedings even further,” said Martin.
Ad-hoc arbitration, which involves finding your own venue and arbitrator, and determining your own set of rules, is also an option.
“Arbitration has become more and more popular, both with practitioners and parties,” said Martin. “For the parties, it provides a neutral tribunal. If you have a specialist issue - for example, a dispute that involves complex software or intellectual property issues - you can select an arbitrator who possesses this expertise. You can shape your arbitral tribunal. Typically, you will have a sole arbitrator, or three. The Chair might be a lawyer, while the other two arbitrators might be subject matter specialists. The other big attraction is global enforcement.”
Confidentiality can be enforced by the jurisdiction in which arbitration is taking place or by a specific confidentiality clause in the arbitration agreement.
“You shape your own process. You decide which rules apply. You decide whether arbitrations are in person or remote; at the moment, of course, the majority are virtual or remote. You choose your arbitrator(s),” explained Martin.
However, the popularity of arbitration has engendered a response from the courts, in the form of new specialist commercial courts in Singapore, London, and the Middle East.
“Some argue that the downside of arbitration is that it does not create legal precedent,” noted Martin.
“Big commercial law firms have become very much involved in arbitration,” he observed.
International Arbitration Practice, a pathway to CIArb membership
Martin has been instrumental in developing The College of Law’s two international arbitration subjects, International Arbitration Practice (ILP7) and its advanced counterpart (ILP14).
“The ILP7 provides the fundamentals of international arbitration,” said Martin. “It’s the pathway to membership for CIArb. It will equip you to practise as a lawyer in international arbitration. It will equip you to sit as an arbitrator. It is intended to give you just about everything you need to work as an arbitrator.”
“You don’t require CIArb membership to be an arbitrator, but it provides an element of quality assurance and credibility,” explained Martin. Some arbitral institutions will only allow CIArb Fellows on their approved list of arbitrators.
“The ILP14 course will provide the pathway to a CIArb Fellowship,” said Martin. “It focuses on the arbitral award. You have to write your own arbitral award to get the fellowship.”
Most notably, neither course necessarily requires you to be a lawyer or possess a law degree. Arbitrators can come from many fields and often do.
“The College of Law arbitration subjects focus on the arbitration agreement, the arbitral process, the pleading or memorials, the arbitral award, challenges to the award, and the role of national courts in commercial arbitration.”
There are two forms of arbitration agreement, explained Martin. The first is the agreement prior to a dispute, usually in the form of an arbitration clause; while the submission agreement occurs after the dispute once hostilities have broken out.
“It’s a fairly intensive course and provides a thorough framework. Although it does reflect to an extent our ASEAN+6 region, it is truly international,” said Martin. “In the longer term, these subjects will also provide the further opportunity to gain a Masters in international dispute resolution.”
Martin continues to relish the intellectual challenges of international arbitration.
“All the intriguing issues and different laws involved are fascinating,” said Martin. “Like every dispute, there is, at its heart, a dispute on the facts and between the people involved. Even in a major commercial arbitration, it all comes down to the actions of individuals and the dynamics between people.”
“One of the best parts of my practice has been travelling and working with colleagues in different countries,” said Martin. “Though I’m trained in the Common Law, I’ve spent much of my career working in Civil Law countries. There are areas where both legal traditions connect and where they disconnect. Arbitration itself pulls in so many other issues. You could have an arbitration about IP, around a commercial contract, or around a relationship in tort.”
“Through my teaching for The College of Law, it’s so nice to pass this knowledge to students, who in turn come from very diverse careers and areas of law.”
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