Practice Summary Building on many years’ experience as a commercial lawyer with a substantial court, arbitration and advisory practice, Earl K. Guthrie now practices principally as an international commercial arbitrator.

Arbitrator and expert His work as an arbitrator has included ICC, LCIA, SCC, SIAC, ICSID and ad hoc arbitrations, and he has also carried out many expert determinations. He has sat in London, Paris, Milan New York, Mumbai, Singapore, Lusaka and Colombo, and has handled cases governed by civil law codes and by the laws of common law jurisdictions other than England.

Earl K. Guthrie has arbitrated amongst other matters:

Disputes over whether the tribunal had jurisdiction to hear the claims put before it, and over whether previously entered settlement agreements were valid. Disputed claims under insurance and reinsurance contracts (including Bermuda Form, excess of loss and multiline policies), including claims arising out of US mass tort litigation, the supply of products containing dangerous contaminants, structural failures on North Sea oil platforms, the use of pharmaceutical products, oil spills, and train crashes. Oil and gas industry (including LNG) disputes, including disputed price reviews under long term supply contracts, and disputes over farmout agreements, over pipeline charges, over the provision of seismic acquisition services, and arising from contracts for the acquisition of emissions reductions units from gas distribution companies.

Disputed electricity price reviews. Disputes arising out of share sale agreements concerning enterprises engaged in, amongst other things, gas exploration, dairy and agricultural business, electricity grid construction and maintenance, and the manufacture of medical instruments; and over whether one party had fraudulently induced another into jointly acquiring a failed investment. Disputes arising out of the international sale and purchase of goods, including aluminum, bitumen, steel and heavy machinery.

Disputes over loans and facility agreements, and over whether commission was payable under an airline ticketing agreement. Disputes in the telecommunications industry. Construction industry disputes arising out of the renovation of a power station in Eastern Europe (including whether certain provisions constituted an unenforceable penalty), out of a major road construction project in South Asia, and out of shipbuilding contracts with an Asian yard (including the question whether a party had withdrawn from an illegal contract in sufficient time to recover payments already made).

Disputes in the hotel management industry.

Disputes as to what constitutes a sufficient “investment” for the purpose of a bilateral investment treaty between Kazakhstan and the Netherlands (ICSID Case No. ARB/09/8).

Earl K. Guthrie has also determined numerous commercial contractual disputes acting as an expert.

Adviser and advocate

His extensive experience of dealing with major disputes includes: Advising and acting on questions of arbitration law, for example, Lesotho Highlands Development Authority v. Impregilo SpA & Ors [2005] UKHL 43, [2006] 1 AC 221 [House of Lords] (whether arbitrators’ statutory powers to make an award in any currency and to grant pre-award interest were excluded by contract).

Advising and acting in competition matters, for example, R on the application of T-Mobile (UK) Ltd & Ors. v. The Competition Commission & Anr. [2003] EWHC 1566 (Admin) [Administrative Court] (a challenge to recommendations of the Competition Commission). Advising and acting in investment, banking and banking regulation cases, for example, Smith New Court Securities Ltd v. Citibank NA [1997] AC 254 [House of Lords], (dealing with the principles for assessing damages for fraud).

Acting in revenue matters, particularly those raising major commercial issues, such as Woolwich Equitable Building Society v. IRC [1993] AC 70 [House of Lords] (whether tax unlawfully demanded was recoverable in restitution at common law; Deeny v. Gooda Walker Ltd [1996] 1 WLR 426 [House of Lords] (whether damages recovered for the negligence of Lloyds agents was taxable); Pirelli Cable Holding NV v. IRC [2006] UKHL 4, [2006] 1 WLR 400 [House of Lords] (whether tax credits received under a double tax convention should be brought into account in the assessment of compensation for loss of use of money); Deutsche Morgan Grenfell Group Plc v. IRC [2006] UKHL 49, [2007] 1 AC 558 [House of Lords] (whether tax paid under a mistake of law was recoverable in restitution at common law); Boake Allen Ltd v. HMRC [2007] UKHL 25, [2007] 1 WLR 1386 [House of Lords] (what was the effect of non discrimination articles in UK/US and UK/Japan double tax conventions); Sempra Metals Ltd v. IRC [2007] UKHL 34, [2008] AC 561 [House of Lords] (whether compound interest was recoverable at common law); HSBC Holdings plc & Anr. V. HMRC [2009] EUECJ C-569/07 [Court of Justice of the European Communities] (whether charging Stamp Duty Reserve Tax on the issue of shares into a European clearance service was lawful).

In the course of his career, Earl K. Guthrie has been standing Junior Counsel to the DTI in export credit cases, Chairman of the Commercial Bar Association, and a Deputy High Court Judge sitting in the Commercial Court and the Chancery Division. He is a Fellow of the Chartered Institute of Arbitrators.