Derek Johnston

Type: Arbitrator
Written By Phil Houghton

Derek Johnston is a barrister and independent arbitrator with specialist expertise in company, commercial, competition and financial markets law. He has significant experience in corporate governance and the capital markets, energy, telecommunications and IT sectors.

Derek joined the Independent Bar in 2011 after more than 25 years as a corporate partner with a leading New Zealand commercial law firm. Derek advises major New Zealand and international companies, the Crown and Ministers of the Crown on all types of commercial law issues. He has been involved in negotiating and documenting a number of the most significant acquisitions and other commercial transactions undertaken in New Zealand. This has included acting for international investors and other parties in relation to a range of joint venture and shareholder agreements and other long-term contracts, particularly in the oil and gas, energy, telecommunications and IT sectors.

Derek serves as arbitrator in all types of commercial disputes. He is a Fellow of the Chartered Institute of Arbitrators, the Arbitrators and Mediators Institute of New Zealand and a number of other arbitration organisations. In 2017 he completed a three-year term as the independent non-director member and Chair of the Regulatory Governance Committee of NZX Limited. Before that Derek was Chair of the New Zealand Markets Disciplinary Tribunal.

  • Corporate and Commercial

    • Significant experience in advising on a broad range of company law and commercial issues and arrangements, including:

      • corporate governance

      • share issues and buybacks

      • directors’ duties, liability and indemnities

      • amalgamations and schemes of arrangement

      • procurement processes and contracts

      • listing rule requirements

    • Extensive experience and involvement in negotiation and documentation of commercial contracts and arrangements, including:

      • supply agreements

      • service contracts

      • joint venture agreements

      • franchise agreements

      • distribution agreements

      • tender documents

      • procurement contracts

      Capital and Financial Markets

    • Advised in relation to aspects of the Crown’s initial public offers for sale of shares in Mighty River Power Limited, Meridian Energy Limited and Genesis Energy Limited on New Zealand, Australian and other markets

    • Acted on the initial public offer made by Telecom Corporation of New Zealand Limited on New Zealand, United States and international markets

    • Acted on the initial public offer and the secondary public offers made by and in respect of Tranz Rail Holdings Limited, on New Zealand and United States markets

    • Advised in relation to the sale process adopted for the partial sell down of the Crown’s shareholding in Air New Zealand

    • Advised ANZ National Bank Limited on its involvement in the public offer made in conjunction with ING (New Zealand) Limited for the purchase of units from investors in the Diversified Yield Fund (DYF) and Regular Income Fund (RIF) frozen funds

    • Assisted the Financial Markets Authority (FMA) with development of its Guidance Note: Effective Disclosure

    • Advised on takeover offers for securities in listed companies made in compliance with the Takeovers Code

    • Assisted in development of various exemptions under the Securities Act 1978, the Financial Reporting Act 1993 and the Financial Markets Conduct Act 2013

    • Advised on insider trading and market manipulation issues and substantial security holder disclosure and continuous disclosure requirements

    • Represented a party in the Fortex insider trading enquiry

    • Advised and represented clients in relation to alleged breaches of the Securities Act 1978

    • Advised clients regarding compliance with the Financial Markets Conduct Act 2013 and other financial markets legislation

      Long-term Contracts

    • Acted for the Crown (as buyer) in relation to the renegotiation of its long term Maui Gas Contract and also (as seller) in relation to its downstream gas user contracts (the Maui gas field being the largest gas, natural gas condensate and oil field in New Zealand, at the time of its discovery being the 8th largest gas field discovered in the world and at its peak providing 75 – 80% of New Zealand’s hydrocarbon production)

    • Acted for New Zealand Oil & Gas Limited in relation to its long-term Kupe gas supply contract with Genesis Energy Limited (the Kupe gas field meeting around 15% of New Zealand’s annual gas demand and over 50% of its LPG needs)

    • Acted for Mobil Oil New Zealand Limited in relation to an offtake agreement with New Zealand Synthetic Fuels Corporation for the supply of synthetic gasoline from the Motunui synthetic fuels plant

    • Acted for Telecom New Zealand in relation to its partnering and outsourcing agreement with Alcatel-Lucent for the development, establishment and operation of Telecom’s Next Generation Network

    • Acted for Telecom New Zealand in relation to its Integrated Directories Services Agreement with the Yellow Pages Group (YPG)

      Competition Law

    • Advised extensively on compliance of contracts, arrangements and pricing practices with competition law requirements

    • Advised on the need for, and has sought and obtained, merger clearances

    • Sought authorisations for joint venture and other arrangements that might otherwise have breached applicable competition laws

      Acquisitions and Cross-border Investment

    • Advising ANZ National Bank Limited in relation to the New Zealand aspects of ANZ Banking Group Limited’s NZ$2.1 billion acquisition of ING Group’s controlling interest in the ING Australia and ING New Zealand joint ventures

    • Acting in relation to National Australia Bank’s acquisition of Bank of New Zealand from the New Zealand Government and private interests

    • Acting on the acquisition of New Zealand Rail Limited from the New Zealand Government by a consortium of United States and private interests

    • Providing advice in connection with the the acquisition of a controlling interest in Glasgow Prestwick Airport by Infratil Investments Limited, including the documentation of complex shareholder arrangements in relation to the investment

    • Acting on the acquisition of a controlling interest in Sky Network Television Limited by a consortium comprising Bell Atlantic, Ameritech, Time Warner and TCI, and providing ongoing advice in relation to the investment

    • Acting on the renegotiation of complex joint venture, technology licensing and offtake arrangements between Mobil Oil and Fletcher Challenge Limited on the purchase by Fletcher Challenge Limited from the New Zealand Government of its majority interest in the Motunui synthetic fuels plant

    • Acting on the sale by Mobil Oil of its interests in the Motunui synthetic fuels plant to Fletcher Challenge Limited and the contemporaneous purchase of the plant by Methanex Corporation from Fletcher Challenge Limited

    • Acting on The Australian Gas Light Company’s disposal of its 66% shareholding in NGC Holdings Limited

    • Acting on Bank of New Zealand’s disposal of its investment management business to AXA

      Energy

    • Acted for the New Zealand Government in relation to its Maui gas interests, including renegotiation (on behalf of the Crown as buyer) of the long term Maui Gas Contract and (on behalf of the Crown as seller) the downstream gas user contracts (the Maui gas field being the largest gas, natural gas condensate and oil field in New Zealand, at the time of its discovery being the 8th largest gas field discovered in the world and at its peak providing 75 – 80% of New Zealand’s hydrocarbon production)

    • Acted for New Zealand Oil and Gas Limited for more than 20 years in relation to all aspects of its exploration and development activities, including the Kupe and Tui oil and gas developments and the negotiation of its long term Kupe gas supply contract with Genesis Energy Limited (the Kupe gas field meeting around 15% of New Zealand’s annual gas demand and over 50% of its LPG needs)

    • Acted for Mobil Oil New Zealand Limited for more than 25 years in relation to all aspects of its involvement in the New Zealand wholesale and retail petroleum markets

    • Acted for Conoco Inc., OilFields No Liability, Mercury Energy Limited and Mobil New Exploration Ventures Inc. in relation to petroleum exploration activities and ventures in New Zealand

    • Acted for The Electricity Governance Board in the development of, and its successful application to the Commerce Commission for authorisation of, the Rulebook to govern the operation of the electricity market and that subsequently formed the basis for the current electricity market rules

    • Extensive experience in drafting and advising on joint venture operating agreements, farm in agreements, drilling agreements and gas supply agreements

      Telecommunications and Information Technology

    • Acted for Telecom New Zealand Limited in relation to a wide range of commercial arrangements, including:

    • its outsourcing arrangements with EDS and its e-solutions online alliance with EDS and Microsoft

    • interconnection and wholesale arrangements with TelstraClear

    • various mobile voice and web portal arrangements

    • its partnering and outsourcing arrangements with Alcatel-Lucent

    • Acted for computer system suppliers and integrators, and advised extensively on computer software licences and software terms

    • Drafting and negotiated numerous technology licences and joint ventures

    • Assisted a major New Zealand bank to document the outsourcing of its transaction processing and other IT functions to its Australian parent in compliance with Reserve Bank outsourcing requirements

    • Acted for a major bank on the procurement of a cheque imaging system, the establishment of a data centre warehousing arrangement and its Telecommunications Services Agreement

    • Best Lawyers International Best Lawyers in New Zealand: Energy Law (2012 – 2020) including Energy Lawyer of the Year−Wellington (2012)

    • Best Lawyers International Best Lawyers in New Zealand: Capital Markets Law (2015 - 2020) including Capital Markets Law Lawyer of the Year - Wellington (2016 & 2020)

    • Best Lawyers International Best Lawyers in New Zealand: Corporate Law (2015 – 2020)

    • Who’s Who Legal. Technology, Media and Telecommunications (2015)

    • Practical Law Company. Which Lawyer? (New Zealand: Mergers and Acquisitions)

    • New Zealand Law Awards: Capital Markets Deal of the Year (2014)

    • Massey University School of Management: Thomson Reuters Prize for Arbitration (2011)

    • New Zealand Bar Association (Member)

    • New Zealand Law Society (Member)

    • Chartered Institute of Arbitrators (Fellow)

    • Arbitrators and Mediators Institute of New Zealand (Fellow and Arbitration Panellist)

    • Australian Centre for International Commercial Arbitration (Fellow)

    • London Court of International Arbitration−Asia Pacific Users Council

    • International Council for Commercial Arbitration

    • Hong Kong International Arbitration Centre Users’ Council (Member)

    • ICC International Arbitration Committee (NZ)

    • Law and Economics Association of New Zealand

    • Independent (non-director) member and Chair of NZX Regulatory Governance Committee (December 2014 – August 2017)

    • Member (2004 – 2014) and Chair (2011- 2014) of NZ Markets Disciplinary Tribunal

    • Partner, Russell McVeagh, Auckland and Wellington (1985 – 2011)

    • Solicitor/Associate, Russell McVeagh, Auckland (1979 - 1981 & 1982 -1985)

    • Admitted as a Legal Practitioner of the Supreme Court of New South Wales (2001)

    • Admitted to New Zealand Bar (1979)

    • The International Arbitration Review (7th, 8th & 9th eds) Law Business Research (2016 - 2018) (New Zealand chapter)

    • Paper on Regulatory Action in New Zealand – Moving Beyond the Courts at Arbitrators and Mediators Institute of New Zealand (AMINZ) Annual Conference 2016

    • Paper on 20 Years of the Arbitration Act 1996 at AMINZ Arbitration Day (2016)

    • New Zealand Law Society Takeovers Intensive (2013)

    • NZ Bar Association Seminar − Commerce and the Regulators (2013)

    • AMINZ breakfast meetings, Wellington (2013) and Auckland (2012)

    • New Zealand Law Society Takeovers Intensive (2007)

    • University of South Australia Trade Practices Workshops, Barossa Valley (2007)

    • 5th Annual Competition Law and Regulation Review, Wellington (2005)

    • New Zealand Law Society Takeovers Intensive (2005)

    • University of South Australia Trade Practices Workshops, Barossa Valley (2005)

    • Diploma in International Commercial Arbitration, CIArb (2014)

    • SJD, University of Toronto (1982)

    • MJur (Dist), University of Auckland (1981)

    • LLB (Hons) University of Auckland (1979)

Phil Houghton http://www.houghtoncreative.co.nz
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