Michael Polkinghorne

Partner, Paris

Biography

“No matter what issues come up, he knows about them immediately, even if they have to do with the industry rather than just the law … He is to the point, focused and knows what he’s after … He’s a larger-than-life character and has an incredibly good sense of humor.”
Chambers Europe-wide 2018

Overview

Michael Polkinghorne is a dual-qualified lawyer, resident in Paris where he heads the office's arbitration group. He is joint-head of the firm's oil and gas practice, as well as pro bono leader of the firm's Paris office. He has a broad range of experience in arbitration and litigation in the areas of energy, telecommunications, project finance and infrastructure. He has served as counsel and arbitrator in arbitrations conducted under most major institutional rules and is the former Australian member of the International Court of Arbitration of the ICC, where he has been a member of the ICC Task Force on arbitrations involving state entities. He has covered disputes arising in a variety of countries, and has significant expertise in the area of foreign direct investment and acting for and against states. He has in recent years been involved in a number of mediations, notably in the industrial gas sector, and has served in over two dozen cases as arbitrator (sole, party-appointed or chair), predominantly in the energy sector, under the ICC, LCIA, Bahrain, Thai MoJ and UNCITRAL rules. He has also testified as expert witness on international best energy practices.

Michael is also a member of the panel of arbitrators of the BVI International Arbitration Centre, the Asian International Arbitration Centre, OHADA, and the Korean Commercial Arbitration Board.

Michael has a significant transactional practice, advising clients in the energy and infrastructure development fields. He has advised a number of petroleum clients on projects in South East Asia, the Russian Federation, India, China and West and North Africa.

Admitted to practice in both common and civil law jurisdictions, Michael is presently a member of the Legal Advisory Taskforce of the European Energy Charter Secretariat. He has written extensively on energy dispute resolution and foreign investment, and provides courses on long-term energy contracts and dispute resolution. He has taught at the Paris Bar School and several business schools.

Michael is consistently ranked in the top tier of arbitration practitioners in Paris, and was the winner of the French Arbitration & ADR Client Choice Award in 2017 and 2019. He was also named "Energy Lawyer of the Year" at Euromoney’s 2014 Global Commercial Arbitration Awards. He is a Leading Individual for International Arbitration (Legal 500 2019).

Bars and Courts
Paris Bar
Solicitor of England and Wales
Solicitor and Barrister of the Supreme Court of South Australia
Education
LLM
Queens' College
Cambridge University
LLB
University of Adelaide

South Australia

Languages
English
French

Experience

Michael's recent work includes:

Representing different European buyers and sellers of gas in multiple price reopener disputes;

Advising  a number of European and Asian clients in the context of Joint Venture disputes in areas ranging from energy storage to commercial distribution;

Counsel in several energy related disputes in and/or involving Mainland China;

Representing an African, Middle-Eastern-owned company, in a successful ICC arbitration, conducted in French, with an African State, in connection with public works contracts;

Representing the Ukrainian state in several unrelated disputes brought under both contract and bilateral investment treaties;

Advising a Scandinavian hydroelectric producer on issues arising under several long-term power purchase agreements over several years;

Representing a state agency in a PCA dispute brought in relation to the Kyoto Protocol;

Representing a state-owned gas company in an east-west gas supply, storage and transit dispute with claims in excess of USD 6 billion;

Representing a majority owner in a joint venture mobile telecommunications company in a dispute arising out of the threatened divestment of its majority interest by its joint venture partner, the telecommunications arm of a Central European government;

Representing a vendor of a majority interest in a Central European mobile telecommunications company in a dispute with the purchaser;

Representing the owner of a pharmaceutical company in two disputes against a Central European state accused of expropriating such interest;

Representing an Asian state in a US$180 million UNCITRAL (bilateral investment treaty) arbitration against a European construction company;

Representing a major petroleum company in an acquisition dispute over a Russian oilfield against a subsidiary of a state-owned oil company; and

Representing a major petroleum company in a PSA dispute involving the Russian Federation.
 

Speaking Engagements

"Investor-State Disputes under the Energy Charter Treaty", May 2018: 2018 Roschier Arbitration Forum, Stockholm

"Oil & Gas Financing", April 2018: AIPN and EVOLEN Paris Arbitration Week Event, Paris

"Rethinking Co-Leadership in a Disrupted World", December 2017: CIArb and ArbitralWomen Breakfast Event, Paris

"Open Forum: Civil-Common Law Divergence and Convergence: the Telecommunications and New Technologies Case Study – Security, Privacy and evidence", December 2017: CIArb International Arbitration Conference - The Synergy and Divergence between Civil Law and Common Law in International Arbitration, Paris

"Confidentiality and privilege - Is there an argument for reversing any presumption of confidentiality so that parties must act to ensure it, rather than rely on any implied rule? What are the pros and cons?", November 2017: GAR Live Paris, Paris

"LNG Disputes: Beyond Hub Indexation", November 2017: Cornerstone Research Event, London

 

Publications

Co-edited, "Expedited Procedures in International Arbitration," Kluwer Law International, December 2018 (with Laurent Levy)

Author of the Paris Energy Series, a legal periodical which has to date covered (a) unitization of oil and gas fields, (b) gas price redetermination, (c) "pre-contract" agreements, (d) choice of law in international energy contracts, and (e) drafting oil and gas dispute resolution clauses (f) exclusion of liability clauses, (g) take-or-pay conditions in gas supply agreements, (h) standard-form clauses in common and civil law jurisdictions, (i) the force majeure clause, (j) arbitral implications for the oil and gas sector of the Paris agreement on climate change (2009-2016)

Member - Legal Advisory Task Force, "Handbook on General Clauses Applicable to Investment Agreements in the Energy Sector", Energy Charter Secretariat, 2017

Co-author, "Due Process Paranoia: Need We Be Cruel to Be Kind", Journal of International Arbitration 34, no.6, 2017 (with Benjamin Ainsley Gill)

Co-author, "The Legality Requirement in Investment Arbitration" Journal of International Arbitration 34, no. 2, 2017 (with Sven-Michael Volkmer)

Co-author, "Structural support, not a bridge: The role of amicus curiae opinions in investment arbitration", Liber Amicorum en l’Honneur de William Laurence Craig, 2016,pp. 289-308 (with Elizabeth Oger-Gross)

Co-author, "The Adverse Inference in ICSID Practice" ICSID Review, 2015, pp.1-11 (with Charles Rosenberg)

Co-author, "Price Re-Openers In Long-Term Gas Supply Agreements" (Chapter 12 of The Leading Practitioner's Guide to International Oil & Gas Arbitration), Juris, August 2015 (with Sven-Michael Volkmer)

Co-author, "Key Stakeholders" (Chapter in The Encyclopedia of Oil and Gas Law, Volume 2: Midstream and Downstream), Globe Law and Business, 2015 (with Tuuli Timonen)

Co-author, "Expecting the Unexpected: The Force Majeure Clause," Business Law International, vol.6, n°1, January 2015 (with Charles Rosenberg)

Co-author, "Different Strokes for Different Folks? The Role of the Tribunal Secretary," Kluwer Arbitration blog, May 2014 (with Charles Rosenberg)

Author, "Changes of circumstances as a price modifier," Gas Price Arbitrations: A Practical Handbook (Globe Business Publishing Ltd), February 2014

Co-author, "Chapter 11 – Provisional Application of the Energy Charter Treaty: the conundrum," Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty, February 2012

Co-author, "Two steps forward, one step...sideways - recent developments in arbitration in China," Kluwer Law International's Journal of International Arbitration, 2008 (with Robert Pé)

Co-author, "Revision of the UNCITRAL Rules: The Current State of Play," Contemporary Asia Arbitration Journal, May 2008 (with Marily Paralika)

"Enforcement of annulled awards in France: the sting in the tail," International Construction Law Review, Vol. 25 Pt 1, 48, January 2008

"Unitisation or redetermination: right or obligation?," Journal of Energy and Natural Resources Law, Vol. 5, No 3, summer 2007
 

Awards and Recognition

Consistently ranked in the top tier of arbitration practitioners in Europe (Band 1 for France and Europe; Chambers Global 2019 and Chambers Europe 2019)

"Paris-based Michael Polkinghorne is a seasoned figure in the international arbitration sphere, with a practice predominantly focused on high-value oil and gas and energy-related disputes. He has substantial experience handling ICC proceedings and is particularly active in disputes involving African jurisdictions." (Chambers 2019)

"Michael Polkinghorne is highly regarded for his "diverse practice" across Africa and as a "very good international practitioner." Sources are impressed, saying that he "does some fantastic work, especially in the Nigerian context." ( Band Two for Africa; Chambers 2019)

"Michael Polkinghorne is recognised as one of the most prominent energy and arbitration lawyers in the country." (Who's Who Legal, France, 2019)

"No matter what issues come up, he knows about them immediately, even if they have to do with the industry rather than just the law"..."He is to the point, focused and knows what he's after...He's a larger-than-life character and has an incredibly good sense of humour." Chambers Europe-wide 2018

"A superb lawyer"; "Outstanding knowledge of certain aspects of energy law." Chambers France 2018

"He is running a spectacular practice and is one of the leading oil and gas arbitration experts. He really is excellent." Chambers Global-wide 2018

"Doing great work" and "an extremely able counsel and arbitrator" Who's Who Legal 2018

"Well-respected, Paris-based practitioner in this market and maintains an excellent reputation among his peers. He is highly regarded for his work in arbitrations throughout Africa, with notable expertise in the oil and gas sector." Chambers Africa-wide 2017

"Exceptional" and "Superb" Chambers Europe-wide 2017

"An 'exceptional' lawyer and 'certainly one of the leaders of the field.'" Chambers France 2017

Winner of the Arbitration & ADR category for France; Client Choice Awards 2017 and 2019

"Fantastic for energy disputes", "a joy to work with", "diligent manner" and ability to "grasp and organise complex issues with ease". Who's Who Legal 2016

"very impressive individual", "convincing, structured and very focused." Chambers France 2016

"an excellent lawyer without a huge ego" who has "a great practice and is well respected." Chambers Global-wide 2016

"Energy Lawyer of the Year" Euromoney's Global Commercial Arbitration Awards, for 2014

"A "top choice" for energy disputes" Who's Who Legal, for 2014