Interviews
#10QuestionswithMaxwell Interview Series: Hon Paul Heath KC, Bankside Chambers
In this #10QuestionsWithMaxwell interview, we feature Hon Paul Heath KC, Arbitrator and Mediator at Bankside Chambers.
Hon Paul Heath KC is a retired Judge of the High Court of New Zealand, who sat regularly as an ad hoc Judge in the Court of Appeal. After retiring from the Bench in 2018, following 16 years service, Paul has established a practice in international and domestic arbitration, including Panel membership of the Singapore International Arbitration Centre. He has also been involved in both international and domestic mediations, some of which were conducted on‑line during the pandemic. Paul is a Fellow of the Chartered Institute of Arbitrators (UK) and the Arbitrators’ and Mediators’ Institute of New Zealand. He also has a long standing interest in cross border insolvency, something that has been recognised by his position as co-chair of INSOL International’s ADR Colloquium.
In this interview, Paul shares how his experience as a judge influenced his style as an arbitrator, what he would say to his younger self, 3 fun facts about him, and more.
Read his full interview below:
Q: How has your experience as a judge influenced your style as an arbitrator?
Being a Judge means demonstrating impartiality and courtesy to those appearing (whether lawyers or lay people) in a public setting. Knowledge of mistakes or inappropriate comments can enter the public domain very quickly, particularly in a high-profile case. Those constraints demand a moderate approach from judges. The techniques of judging are equally important in an arbitration. I preside over arbitrations in much the same way: treating counsel, parties and witnesses with courtesy and respect yet insisting on efficient preparation for a hearing so that determination of the dispute is not unduly delayed.
Q: What were some of your toughest challenges in your career? How did you overcome them?
My experience taught me that, in the course of your career, you confront a situation which, if you overcome it, gives you confidence that you can meet any challenge that the role may bring.
As a lawyer, that challenge was leading a case in the Privy Council at the age of 34 years, with an extraordinarily talented English Silk as my opponent. I came out of the hearing believing that I had performed well and not let opposing counsel, despite his better knowledge of the characteristics of the Judges, get the better of me. That gave me confidence in my ability to appear at any level and to advocate strongly for my client.
As a Judge, I was confronted by a difficult multi-accused drug trial involving methamphetamine in which there were serious grounds for concern that counsel for one of the less culpable parties was incapable to conduct the trial through impairment. A trial the previous week had been aborted by another judge because that counsel’s conduct put a co-accused’s fair trial rights in jeopardy. I was able to navigate through the situation by suggesting to the lawyer that he speak to senior counsel to take advice as to whether it was appropriate for him to continue to act in a case likely to take some 10-12 weeks. He took advice from senior counsel who also appeared before me later in the day. A satisfactory outcome emerged when the counsel decided to withdraw, and I was able to sever his client from the trial without putting the rights of others in jeopardy. After that experience, I knew that I could successfully confront any situation that came before me as a Judge.
Q: What do you enjoy most about being an arbitrator?
I enjoy arbitration because it provides a decision-making process that enables me to apply all aspects of my experience in the law, as both counsel and Judge, over a period of 40 years or so. In particular, I am enjoying international arbitration. This is a challenge that I wanted to embrace and was something firmly in mind when I retired early from the Bench. The dream was nearly scuppered by COVID-19. However, through my work (primarily) in Singapore I am now enjoying the benefits of dealing with counsel from other jurisdictions and sitting with others who bring a different background to their determinative skills.
Q: How might younger legal practitioners best position themselves in the current market? Please share some advice(s) to aspiring individuals who want to pursue a career in ADR.
There are some practical difficulties in the way of young lawyers embracing alternative dispute resolution as a career. There will always be difficulties in getting the first, second or third appointment. Inexperience is a problem because few will appoint young practitioners as arbitrators or mediators. Rightly or wrongly (particularly in the common law world where young practitioners do not have the option of entering the judiciary at an early stage), many are seen as lacking the life experience to make or help others to make difficult decisions that will affect the parties significantly.
The best advice is to get involved in a firm that has a significant practice in alternative dispute resolution to gain experience under others and to get a profile among those lawyers against whom you act. Finding a good mentor is very important. The young practitioner groups run by organisations such as SIAC are ones which will enhance ability to obtain work. But, particularly in the commercial area, patience is the appropriate virtue.
Q: If you could implement one reform in the arbitral system, what would it be?
I was fortunate to be involved as a Commissioner with the New Zealand Law Commission in undertaking a project that was designed to improve the Arbitration Act 1996, which was based on the UNCITRAL Model Law. The confidentiality regime that we recommended (and was introduced) has made a significant difference.
If I were to undertake the same task now, I would focus my attention on bringing greater clarity to the concept of arbitrability. Public policy issues arise, particularly in international arbitrations, in determining whether to recognise or enforce an award. The circumstances in which particular insolvency disputes might be arbitrated and any awards recognised or enforced is a good example of the problem. It would be difficult to undertake this type of law reform from a domestic level only, because the New York Convention would need to be left intact. It would be a challenge but if something could be done it would be enormously satisfying.
Q: What sacrifices (if any) have you made on your journey to success? Would you have done anything differently?
Any successful lawyer, judge or arbitrator sacrifices elements of private life in order to reach the top of his or her profession. I have been lucky in having a very supportive wife, whom I have probably not spent as much family time with as I should have done. Work/life balance was not a common concept in the 1980s and 1990s while I was growing my reputation at the Bar.
I would probably, if I were starting again, endeavour to get the work/life balance clearly delineated and attempt to abide by it. If you tell people when you may be unavailable, they tend to be supportive. As long as you make yourself available in situations of real urgency, taking more time off for family and recreational purposes should be manageable.
Q: If you could go back in time, what would you say to your younger self?
When I went to university, I was the first in my extended family to do so. I was also the first in my extended family to do law. It took me some time to get to grips with how various aspects of the law fitted together and to discern a way in which to interpret it as a coherent whole.
I did not do a post graduate degree – I needed to get into the workforce quickly. As I started to work with clients, my understanding of the legal system and the challenges of my profession grew. My professional development reflected an unstructured and unchartered pathway that, in truth, I was lucky to survive successfully.
There are probably three points that I would emphasise in advising my younger self:
- Point 1: Begin as a generalist and learn how different branches of the law work together. I developed particular expertise in commercial law, and in insolvency in particular. But you do not understand how that area of the law works unless you have experienced others. The work I did in insolvency law aided this development. When acting for a trustee in bankruptcy or a company in liquidation, you need to understand the law in all areas in which the bankrupt individual or the company might have disputes. These cover all aspects of the general law as well as the specifics of bankruptcy and rehabilitation.
- Point 2: Work out the areas in which you wish to specialise and find someone whom you regard as an appropriate mentor to nurture your talent.
- Point 3: If you want to be an advocate or a judge/arbitrator, go into court as frequently as possible and watch the best do their jobs and learn from those experiences.
Q: If you weren’t in your current profession, what profession would you be in?
I am not sure what would have become of me had I not been a lawyer. Ideally, I would have become a full-time international sports commentator! Ultimately, I suspect that I would have focussed on something forensic in nature; possibly an investigative journalist.
Q: Can you share with us some of your fondest memories of Maxwell Chambers.
Bankside has been at Maxwell Chambers for many years, initially in the personification of Sir David Williams KC, a renowned international arbitrator. He had a room in Maxwell Chambers itself before the Suites were established.
The rest of us joined with David in 2019 to acquire our present room when the Suites were opened. We had just established ourselves when the pandemic struck and we were out of Maxwell for about two and a half years, due to lockdowns and travel bans. The fondest memory that I have is being able to return to Maxwell Chambers and to commence Bankside’s Singapore operations. That occurred in mid to late 2022.
Q: Lastly, share 3 fun facts few know about you!
(a) I played rugby at Under 19 level for Auckland. New Zealand is a rugby-mad country!
(b) I have had the privilege of involvement in a number of World Bank and Asian Development Bank missions in which I have assisted in judicial capacity building in cross-border insolvency law. That work has been done in countries as diverse as Myanmar, Mauritius, India, Laos and China.
(c) As far as my advocacy is concerned, I appeared as sole counsel in an appeal in the Court of Appeal of New Zealand before I appeared in the District Court. That was a function of me having been a lawyer with a Government department responsible for administering bankruptcies and liquidations. The High Court had exclusive jurisdiction for the work with which I was involved. While that meant that I did not go into the District Court at that early stage of my career, I appeared as sole counsel in appealing a decision from the High Court to the Court of Appeal. We won!
