Expertise

David J.A. Cairns acts as arbitrator in investor-state disputes arising from bilateral investment treaties or investment agreements. His work has covered, amongst other issues, treaty interpretation, the definition of ‘investment’, standards of treatment in international investment law (expropriation, fair and equitable treatment, legitimate expectations), illegality in investment, denial of justice, the protection of intellectual property in international law, disputes between state entities and joint venture parties, the interface of investor rights and the power to regulate, international trusts, the relationship between contractual and treaty rights, compensation, annulment, and procedural questions relating to the interpretation and application of the ICSID Convention and Arbitration Rules.

David has been appointed as the presiding arbitrator in two ICSID arbitrations arising from infrastructure projects in Peru (Metro de Lima Línea 2 S.A. v. Republic of Peru (ICSID Case No. ARB/17/3; Desarrollo Vial de los Andes S.A.C. v. Republic of Peru (ICSID Case No ARB/20/18)), as well as in an investor-State arbitration pursuant to the Kuwait-Turkey BIT administered by the Permanent Court of Arbitration pursuant to the UNCITRAL Arbitration Rules (Waleed Y J H Aljarallah v TMSF & Ministry of Justice/ The Republic of Turkey (PCA Case No. 2020-04)).

He has also been appointed as a member of the tribunal in a NAFTA arbitration pursuant to the ICSID Additional Facility Rules (Lion Mexico Consolidated L.P. v. United Mexican States (ICSID Case No. ARB(AF)/15/2)) and in another PCA-administered arbitration pursuant to the Switzerland-Bolivia BIT (Zurich Insurance Company & Zurich South America Invest AB v. Plurinational State of Bolivia (PCA Case No. 2020-04)). He has previously acted as an arbitrator in an investment arbitration pursuant to the Spain-Cuba BIT.

Earlier in his career he also acted as counsel in an ICSID arbitration arising from an infrastructure project in Honduras (Elsamex SA c. Republic of Honduras ICSID Case No. ARB/09/4), and in ICSID annulment proceedings in relation to concession contracts in Argentina (Compañía de Aguas del Aconquija SA y Vivendi Universal c. Republic of Argentina, ICSID Case No. ARB/97/3) and Venezuela (Blue Bank International & Trust (Barbados) Ltd. v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/12/20).

David was a member of the ICSID Panel of Conciliators from 2011 to 2017.

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During his extensive career, David has represented clients and acted as an arbitrator in a wide range of construction and engineering disputes, particularly in road, rail and telecommunications infrastructure projects, heavy plant construction, and electricity generation. He has acted in dispute board proceedings under the FIDIC forms. He is accustomed to disputes involving substantial and complex expert evidence on issues such as delay or damages.

His experience covers all the typical issues involved in construction and engineering disputes, such as ground conditions, design, defective construction, delay, variations, cost overruns, project management, non-payment, and termination. It also includes the broader contractual issues that arise in the construction context, such as joint venture, procurement or subcontracting disputes, or calls on bonds and guarantees. He has examined concession contracts from both the construction and investment protection perspectives.

His experience includes major infrastructure projects, particularly in his specialist region of Latin America where his cases have included State parties and raised issues such as the implications of the funding model (for example, PPP or disaster relief) for the obligations of the parties, or the concurrent application of contractual rights and local administrative law. He is fluent in Spanish and English, and familiar with both the common law and continental legal traditions.

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David’s commercial experience has covered all types of contractual disputes, including construction and infrastructure projects, corporate acquisitions, joint ventures, international sale of goods, licensing and distribution, and intellectual property.

He has received appointments as an arbitrator in commercial disputes under a wide range of institutional rules, including the rules of the London Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC), the international division of the American Arbitration Association (ICDR-AAA), the World Intellectual Property Organization (WIPO), the Court of Arbitration of Madrid, the Arbitration Foundation of South Africa, and the Court of Arbitration for Sport.

David practised for many years in intellectual property litigation, particularly in trademark and unfair competition disputes, and in intellectual property disputes in the pharmaceutical and consumer healthcare sectors. He acted as counsel in passing off, unfair trading, copyright, and breach of confidence litigation, as well as in arbitration proceedings involving the ownership of registered trademarks and intellectual property rights under international distribution agreements.

David is the author of The Remedies for Trademark Infringement, Carswell & Co, 1988. He is a member of WIPO’s Trademark PDDRP and UDRP Panels and ICANN’s PICDRP Standing Panel. He has conducted four arbitrations pursuant to the WIPO Expedited Arbitration Rules.

David has a special interest in the history and economic development of Latin America. He has practised in the region for over twenty years with a particular focus on the construction and infrastructure sectors and on joint venture disputes.

His cases in Peru include acting as the presiding arbitrator in two ICSID arbitrations arising from rail and highway infrastructure concessions (Metro de Lima Línea 2 S.A. v. Republic of Peru; ICSID Case No. ARB/17/3; Desarrollo Vial de los Andes S.A.C. v. Republic of Peru; ICSID Case No. ARB/20/18) and as a party-appointed arbitrator in an ICC arbitration arising from the Talara refinery modernization project.

He has presided in three ICC arbitrations relating to joint ventures involving European or US parties in Mexico. He has also acted as a party-appointed arbitrator in a NAFTA arbitration arising from a real estate development in Mexico (Lion Mexico Consolidated L.P. v. United Mexican States (ICSID Case No. ARB(AF)/15/2)).

Other investor-State arbitral appointments in Latin America include an arbitration under the UNCITRAL Arbitration Rules involving the pension funds sector in Bolivia (Zurich Insurance Company Ltd & Zurich South America Invest AB v. Plurinational State of Bolivia (PCA Case No. 2020-04)) and an arbitration between a European investor and a Caribbean state arising from an agrochemical joint venture.

David has also received appointments as president of an ICDR arbitration relating to a distributorship contract between US and Chilean parties and as a party-appointed arbitrator in a LCIA arbitration arising from a M&A transaction in the Dominican Republic.

Earlier in his career he acted as counsel in a case arising from a highway refurbishment project in Honduras as well as in cases relating to the construction and operation of industrial plants or electricity generation in El Salvador, Panama and Argentina. He has also acted as counsel in ICSID annulment proceedings in relation to concession contracts in Argentina and Venezuela.