Robert Kirkness

Experience

# General Civil Litigation

Representing the defendants in CIV-2015-485-000594 Cridge v. Studorp Ltd and CIV-2015-485-773 Fowler v. Studorp Ltd. Civil trial and representative action before the High Court alleging negligence and breach of the Fair Trading Act 1986 by a product manufacturer.

Advising New Zealand Petroleum & Minerals on a range of issues in relation to several oil and gas permits and the Crown Minerals Act 1991.

Representing a United Nations agency and its secretary-general in potential defamation proceedings against a New Zealand media organisation. Matter settled.  

Representing the objectors in a series of valuation disputes concerning the valuation of certain rating units in Wellington before the Land Valuation Tribunal.

Representing certain of the plaintiffs in parallel proceedings against, an engineering firm, construction company and local authority alleging breach of contract, negligence, negligent misstatement and breach of the Fair Trading Act 1986 in respect of a large-scale commercial development. Matter settled.

Commissioner of Police v. Rodriguez & Ors [2019] NZHC 3265 and [2020] NZCA 589. Representing the first respondent in the High Court and Court of Appeal in proceedings brought by the Commissioner of Police seeking a restraining order under the Criminal Proceeds (Recovery) Act 2009.

Vance & Millard (as Trustees for the Orana Trust) v. Vey Group Ltd & Anor [2020] NZHC 2592. Representing the trustees of a trust seeking an order under s 174 of the Companies Act 1993 placing a company into liquidation.  

Couch v. Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149 (SC). Application to strike out a claim for exemplary damages raising issues regarding the availability of exemplary damages in New Zealand and the scope of the ACC bar on claims for personal injury.

# Public law / judicial review

H v. Minister of Immigration [2019] NZHC 2870 (HC) and [2020] NZCA 562. Representing the Crown in the High Court and Court of Appeal in an application for judicial review of the vires of the government’s policy that persons involved with organisations that have committed gross human rights violations are deemed ineligible for residence class visas.

Minister of Justice & the Attorney-General v. Kim (SC 57/2019). Intervening on behalf of the Human Rights Commission in the Supreme Court in a case relating the effectiveness of diplomatic assurances where New Zealand is considering the surrender of a person under the Extradition Act 1999 to a State where there is a risk of a breach of that person’s fundamental human rights.

Attorney-General v. Tamil X & Anor [2009] NZCA 48, [2010] 2 NZLR 73 (CA); [2010] NZSC 107 (SC). Judicial review proceedings regarding the circumstances in which a refugee claimant is excluded from the Refugee Convention on the grounds of suspected complicity in international crimes.

Commerce Commission v. Air New Zealand & Ors [2011] NZCA 64; [2011] 2 NZLR 194 (CA). Intervening in the Court of Appeal in a case arising out of the Commerce Commission’s investigation of alleged price-fixing by a number of airlines. The case concerned the scope of suppression orders imposed on Air New Zealand executives interviewed by the Commerce Commission during the course of its investigation and their compliance with the right to freedom of expression under the New Zealand Bill of Rights Act 1990.

Ullah v. Chief Executive Officer of the Ministry of Business, Innovation & Employment, CIV 2018-404-1950; [2019] NZHC 332. Application for judicial review of decision to decline a residence class visa on the grounds of marriage to a New Zealand citizen.

Vilceanu & Ors v. Minister of Immigration [2008] NZCA 486 (CA). Appeal against deportation on medical grounds before the Court of Appeal.

Representing an incorporated society in an application for judicial review of the decision by the Overseas Investment Office to grant consent to the acquisition by an overseas company of a New Zealand dairy co-operative.

Representing a national organisation for a cultural artform in potential judicial review of a funding decision-making process.

Fisi’peau v. Minister of Immigration (High Court, Wellington, CIV 2010-485-000179, 14 May 2010). Counsel for the Minister of Immigration in an appeal from a decision of the Deportation Review Tribunal to deport the appellant.

Kumar v. Chief Executive Officer of the Ministry of Business, Innovation & Employment, CIV-2019-404-1672. Application for judicial review of decision to decline a visa, including challenge to the validity of certain Immigration Instructions.

Forrest v. Attorney-General (on behalf of the Department of Corrections) (High Court, Christchurch, CIV 2008-404-006358, 30 March 2008). Appeal before the High Court concerning the District Court’s decision not to exercise its discretion to allow a claim for breach of the New Zealand Bill of Rights Act 1990 to proceed out of time.

Slade v. Attorney-General (District Court, Manukau, CIV 2008-092-6044, 10 March 2010). Civil trial before the District Court.

# Criminal Appeals

Abdula v. The Queen [2011] NZSC 130; [2012] 1 NZLR 534 (SC). Criminal appeal before the Supreme Court regarding whether the interpreting assistance provided to the appellant during his trial met the standard required under the New Zealand Bill of Rights Act 1990.

The Queen v. Steigrad [2011] NZCA 304; [2011] 10 NZCLC 264,862. Appeal to reinstate certain charges under the Securities Act against the directors of a finance company in high-profile proceedings regarding the duties of directors to update information in a securities prospectus.

# Investment treaty arbitration

ICSID investment treaty arbitration arising out of alleged expropriation of concession. Representing a consortium of foreign investors in an ICSID arbitration against a Central American State regarding the alleged expropriation of an oil & gas concession.

Elliott Associates, LP v. The Republic of Korea (until 31 December 2018). Representing the Republic of Korea in an investment treaty arbitration under the 2013 UNCITRAL Rules brought by a US-based hedge fund under the Korea-United States Free Trade Agreement. The dispute arises out of alleged political interference in the merger between two Korean entities, Samsung C&T and Cheil Industries Inc. The claimant is a shareholder in Samsung C&T.

Mohammad Reza Dayyani & Ors v. The Republic of Korea. Representing the Republic of Korea in an investment treaty arbitration brought against it by Middle Eastern investors under the 1976 UNCITRAL Rules. The dispute arises out of alleged political interference in a failed M&A transaction.

UNCITRAL investment treaty arbitration arising of out alleged confiscation of real estate assets: Representing a Southeast Asian State in an investment treaty arbitration under the 2010 UNCITRAL Rules brought against it by a dual national and related entity. The claimant possesses the nationality of both Contracting States to the relevant investment treaty and alleges that certain real estate assets in which he claims to have an interest were expropriated.

Ampal-American Israel Corporation & Ors v. The Arab Republic of Egypt (ICSID Case No. ARB/12/11). Representing a consortium of US and German investors in an ICSID arbitration against the Arab Republic of Egypt under the US-Egypt and Germany-Egypt bilateral investment treaties regarding the destruction of the Peace Pipeline Project for the long-term supply of Egyptian natural gas to Israeli customers. The arbitration is one of four parallel investment treaty and contract arbitrations.

Yosef Maiman & Ors v. The Arab Republic of Egypt (PCA Case No. 2012-26). Representing a consortium of Polish and Israeli investors in an arbitration under the 2010 UNCITRAL Rules against the Arab Republic of Egypt under the Poland-Egypt bilateral investment treaty regarding the destruction of the Peace Pipeline Project for the long-term supply of Egyptian natural gas to Israeli customers. The arbitration is one of four parallel investment treaty and contract arbitrations.

Rusoro Mining Ltd v. Venezuela (ICSID Case No. ARB(AF)/12/5). Representing Rusoro Mining Ltd, a Canadian investor, in an ICSID Additional Facility arbitration against the Bolivarian Republic of Venezuela under the Canada-Venezuela BIT regarding Venezuela’s failure to compensate Rusoro for the nationalisation of its gold mining assets.

# International commercial arbitration

UNCITRAL arbitration under joint venture agreement. Representing a Chinese State-owned entity in an international commercial arbitration brought against it by a Canadian-listed oil and gas company pursuant to a joint venture agreement for the exploration and development of a natural gas field in the East China Sea.

ICC arbitration under share sale and purchase agreement. Representing a French conglomerate in an international commercial arbitration brought against it by a Mauritian investment company for its alleged breach of an agreement for the sale and purchase of shares in a Korean listed company.

CRCICA arbitration under a long-term gas supply agreement between Egyptian State-owned entities and an Egyptian company. Representing an Egyptian company in an international commercial arbitration brought against it by two Egyptian State-owned entities under the CRCICA Rules alleging various breaches a long-term contract for the supply of Egyptian natural gas by my client to Israeli customers through a pipeline under the Mediterranean Sea that my client owned and operated. My client counterclaimed for repudiation of the agreement. The arbitration is one of four parallel investment treaty and contract arbitrations.

ICC arbitration under a tripartite agreement between Egyptian State-owned entities, an Egyptian company and an Israeli State-owned entity. Representing an Egyptian company in an international commercial arbitration under the ICC Rules against two Egyptian state entities and an Israeli state entity alleging repudiation of a tripartite agreement guaranteeing the supply of 2.1 bcm of Egyptian natural gas from the Egyptian state entities to the Israeli state entity. The arbitration is one of four parallel investment treaty and contract arbitrations.

ICC arbitration under two related joint venture agreements. Representing a US-based automotive company in negotiations with a Central Asian State-owned entity and parallel international commercial arbitration proceedings under the ICC Rules regarding the Central Asian State- owned entity’s alleged failure to comply with the exercise of put options under two related joint venture agreements for the manufacture, distribution and sale of vehicles.

ICC arbitration under joint venture agreement. Representing a leading Australian investment bank and several Korean pension funds in an arbitration under the ICC Rules regarding the alleged failure by a Korean media company to comply with the exercise of drag options under a joint venture agreement.

SIAC arbitration under joint venture agreement in the pharmaceutical sector. Representing a German pharmaceutical company in an arbitration under the SIAC Rules brought against it by a Vietnamese company regarding the alleged failure to comply with a non-compete provision in a joint venture agreement.

SIAC arbitration under joint venture agreement in the technology sector. Representing a Cypriot company in an arbitration under the SIAC Rules brought against it by a Singapore company regarding the alleged failure to make payments under a joint venture agreement for the manufacture and supply of smartphones.

Gas price review under a long-term agreement for the cross-border supply of natural gas. Representing a Greek importer of natural gas in its price review negotiations with a natural gas exporter and parallel international commercial arbitration under the ICC Rules concerning the price of natural gas under a long-term gas supply contract.

ICC arbitration under a long-term agreement for the cross-border supply of natural gas. Representing a leading German gas importer in an international commercial arbitration under the ICC Rules against a natural gas exporter under a contract regarding the value of natural gas and raising issues of EU competition law.

ICC arbitration over rights to use world famous trademark: Representing a US-based manufacturer in an international commercial arbitration against an Indian company under the ICC Rules concerning the geographic allocation of the right to make, use and distribute products bearing a famous trademark.

# Pro bono work

Minister of Justice & the Attorney-General v. Kim (SC 57/2019). Intervening on behalf of the Human Rights Commission in the Supreme Court in a case relating the effectiveness of diplomatic assurances where New Zealand is considering the surrender of a person under the Extradition Act 1999 to a State where there is a risk of a breach of that person’s fundamental human rights.

Representing a national organisation for a cultural artform in a potential judicial review of a funding decision-making process.

Advising an international human rights organisation in respect of proceedings before the European Court of Justice challenging Hungary’s so-called “Stop Soros” legislative measures.

Advising an international human rights organisation in relation to the obligations of States relating to the UN Human Rights Council and its special procedures.

Advising an international human rights organisation on the obligations of the UN Security Council in respect of reprisals

Advising an international human rights organisation on the status of certain civil society groups before the UN and its subsidiary organs

Drafting a Model Law on Human Rights Defenders for an international human rights organisation.

Advising an international human rights organisation on the obligations of the President of the UN Human Rights Council and its Bureau in respect of reprisals against human rights defenders.

Advising an international human rights organisation in respect of the protection of female human rights defenders in Cote d’Ivoire.

Advising an international human rights organisation in respect of the application of the Yogyakarta Principles.

Professional Recognition

Ranked as a Global Leader in International Arbitration by Who’s Who Legal: International Arbitration (2020-2021)

Ranked as “Most Highly Regarded Lawyer (Barristers/Non-partners) among Future Leaders in the Asia-Pacific Region” by Who’s Who Legal: International Arbitration (2019)

Ranked as a “Future Leader in International Arbitration” by Who’s Who Legal: International Arbitration (2016-2019) (“bound to be a star”; “excellent advocacy skills”)

Ranked as “Up and Coming” for international arbitration by Chambers (2018-2019) (“a future star in the arbitration world”; “smart, hard-working and always appears calm even in the most high-pressure situations”; “relentless in seeking to secure the best outcome for his clients”)

Ranked as a “Next generation lawyer” for international arbitration by Legal 500 (2016- 2019) (“a rising star”; “able to synthesise complex ideas and materials in a clear, concrete and simple manner”)

Professional Activities

Singapore International Arbitration Centre Reserve Panel for Arbitrators

New Zealand Law Society Law Reform Committee

Member, Arbitrators’ and Mediators’ Institute of New Zealand

Member, New Zealand Bar Association

Publications and Seminars

# Articles

‘Old Seeland, New Netherland and New Zealand: Some Thoughts on the Possible “Discovery” of Investment Treaty Arbitration in New Zealand’ [2012] 43 VUWLR 687 (with Lucy Reed)

# Seminar papers

‘Declarations of Inconsistency under the New Zealand Bill of Rights Act 1990’, New Zealand Law Society Seminar, Human Rights Law – New Frontiers, May 2019

‘BORA and the Bureaucrats’, New Zealand Law Society Seminar, Using the Bill of Rights in Civil and Criminal Litigation, July 2008

Qualifications

LLM (with first class honours), University of Auckland

LLB, University of Auckland

BA (Ancient History / Classical Studies), University of Auckland