Judith Levine
In the latest instalment of the Bulletin’s interview series showcasing the exceptional work of Australian ADR Award recipients, the ADC spoke with Judith Levine, who was recently honoured as 2024’s Arbitrator of the Year, to explore her influential role in international arbitration, her expertise in investment and climate-related disputes, and the impact of her award-winning practice. With a distinguished career spanning investment treaty, commercial, and public international law disputes, she has played a pivotal role in shaping global arbitration practices.
A former Senior Legal Counsel at the Permanent Court of Arbitration in The Hague, Judith has presided over and advised on high-profile cases, including state-to-state disputes, environmental arbitration, and investor-state claims. Her expertise extends to climate change-related arbitrations, where she has contributed to pioneering legal frameworks addressing global environmental challenges.
As a highly sought-after arbitrator, Judith is known for her sharp legal acumen, impartiality, and ability to navigate complex cross-border disputes. She is actively engaged in the arbitration community, serving on panels for leading arbitral institutions and mentoring emerging practitioners.
Her recognition as Arbitrator of the Year reflects her exceptional leadership, commitment to fairness, and influence in advancing international arbitration standards. Further, as a recipient of the Australian ADR Arbitrator of the Year Award in 2020, 2021, and 2024, Judith now enters the ADC Hall of Fame, honouring her enduring commitment and achievement throughout her inspiring career.
Our Q&A with Judith Levine
ADC: As a recipient of the Arbitrator of the Year Award in 2020, 2021, and now 2024, how have the Australian ADR awards impacted your practice as an international arbitrator?
Judith Levine: First, it was a chance to make my work known to the Australian community of dispute resolution professionals after I moved home to Sydney in 2019 to establish my practice. I had previously worked outside of Australia for 17 years (at White & Case in New York and at the International Court of Justice and Permanent Court of Arbitration in The Hague).
Second, being able to celebrate the awards with overseas colleagues and institutions helped solidify my profile as an arbitrator to an international audience at the same time as providing a platform to reference the Australian ADR awards generally and showcase the depth of expertise in dispute resolution in Australia.
Third, the nomination process provided the opportunity to take stock of the accomplishments of my practice, as it requires nominees to set out their case work and achievements of the previous 12 months. This stock-taking exercise was quite satisfying and was helpful for future planning, and reflecting on what kind of work to focus on, what I’ve enjoyed, and where I can contribute most.
I have positive associations with the ADC awards dinners too – I was introduced to the Awards in 2019 when I attended with colleagues on the ACICA Board and enjoyed a fun and festive night out. In 2020, when I won my first award, the dinner was held in a cutting-edge hybrid format under lockdown group size restrictions, I was with ACICA colleagues at then President Brenda Horrigan’s apartment. I had already done a few hybrid and virtual hearings and I actually think the pandemic was good for Australian arbitrators, as it normalised that you could work as an international arbitrator from anywhere in the world.
The next year when I won, I had Covid myself so was unable to attend in person, and the third time, very much in the post- Covid era, I was in Europe for arbitration hearings. There are always excellent speakers and musical entertainment and inspiring colleagues being recognised.
ADC: What inspired you to transition from roles in legal counsel and advisory to becoming an independent arbitrator, and how has your previous experience shaped your approach to arbitration?
Judith Levine: My motivations to become an independent arbitrator were both professional and personal. Professionally, I felt ready for the role (I love decision-making and decision-writing, and also case management). I had sat as arbitrator a few times before making the move and wanted to step up and do more. While I absolutely loved my decade at the PCA working on phenomenal cases with an awesome team in a beautiful Palace, I was starting to feel like I’d learned what I could, and was ready to be the arbitrator rather than assist the arbitrators.
Personally, I wanted to move home to Sydney – to give my kids an Australian childhood, spend time with my parents, and integrate into society in a way an expat can’t quite do. I wanted work that I could do from anywhere, with the option of carrying that work overseas again later down the track. There were a handful of prominent arbitrators here in Australia, but I figured there was definitely room in the market for at least one more, especially with international experience and one from the next generation (this has proven true not only for me, but other returning Aussies like Lucy Martinez, Jim Morrison, Jo Delaney and Daisy Mallett).
I love how varied the work is, in terms of industries, legal cultures and colleagues from around the world. I also appreciate the autonomy and flexibility of the role. In terms of how my previous experience shaped my approach to arbitration, my decade as Senior Legal Counsel at the Permanent Court of Arbitration (PCA) provided insights and a skill-set that have been valuable and applicable to my day-to-day practice.
First, I had the opportunity to work with some of the best arbitrators in the world on some of the largest and most complex cases and have first-hand insight into their decision-making processes and case management styles. That’s a special kind of apprenticeship (and built on similar first-hand insights I’d gained at the High Court of Australia as a judge’s associate and at the International Court of Justice as a judicial fellow).
Second, the mix of cases at the PCA allowed me to see how arbitral procedures can be adapted and tailored creatively to suit particular needs of a case. This ranged from investor-state cases with a massive documentary record (like Yukos), to interstate cases with a non-participating party (South China Sea); the PCA’s first intrastate dispute (Abyei), and the unique Bangladesh Accord Arbitrations, which presented novel procedural issues due to having multiple stakeholders and claims. The features of each case, the context in which it arises, the dynamics of the parties, will all affect how to structure the proceedings, balancing confidentiality and transparency, use of experts, working within tight timeframes or allowing for settlement. I learned there is no one single template for an arbitration.
Third, the “nuts and bolts” aspect of working at an institution develops a high level of comfort with issues of procedure, logistics, and case management (including budgets and finances). Those skills are useful in the day-to-day management of an arbitrator practice, as well as the steering of cases from beginning to end in a fair and efficient manner. They complement the knowledge and advocacy skills and party perspective I developed in practice representing companies, individuals and sovereign states in disputes at White & Case in New York. You need both sets of skills.
Fourth, having lived in four continents, and worked with multilingual and multinational teams, has equipped me well for working collegiately with arbitrators and dealing with counsel, parties and witnesses from different jurisdictions. The global network of former colleagues remains strong and there’s a sense of familiarity when I now return to the Peace Palace for hearings as an arbitrator.
Fifth, work at the PCA extended beyond cases to roles in capacity building, diplomacy and thought leadership (e.g. representing the PCA at UN Climate Change conferences, organising judicial workshops on the NY Convention, countless guest lectures). This provided me with bigger picture understanding of the legal framework in which each case operates, and a useful foundation for the kind of capacity-building and outreach we do via ACICA at state, national and regional level.
ADC: You have been involved in several high-profile cases, including disputes under investment treaties and commercial arbitration. Could you share your insights on the trends you are observing in the field.
Judith Levine: There are trends I’ve observed in terms of subject matter of disputes. First, as I predicted at a side event to COP21 in Paris back in 2015, more and more disputes relating to climate change and the energy transition are coming to arbitration. I’ve seen this in my own cases, having sat as arbitrator in cases involving wind, solar and biomass energy projects as well as investment treaty disputes relating to government decisions affecting the fossil fuel industry. Second, several of the commercial disputes I’ve arbitrated in the last few years have arisen directly or indirectly from disruptions caused by the pandemic including supply chain disruptions and failed joint ventures. Third, the impact of armed conflict has impacted commercial ventures in ways that have manifested in arbitrations, including those affected by wars in Ukraine and Sudan.
As for trends in Australia, I would note that ACICA has witnessed an increased demand in its services for appointments and administering cases. This increase in case activity appears consistent with an increase in the depth of experience and sophistication of Australian practitioners working in international arbitration that I’ve noticed over the last two decades. Second, due to the reputation of Australia’s legal infrastructure and judiciary, Australia is increasingly perceived as a destination to recognise and enforce arbitral awards, including in the Kingdom of Spain and related matters, with Australian judgments then endorsed and cited with approval by courts overseas.
There are also trends I’ve observed in the practice of international arbitration. First, there’s a greater consciousness of the environmental impact of arbitrations, which we’ve seen addressed through the Campaign for Greener Arbitration and ACICA’s newly released Sustainability Protocol, developed by ACICA’s Sustainability Taskforce. Second, there’s a greater appreciation of the benefits of diversifying the pool of arbitrators from which parties and institutions can draw, seen through initiatives such as the Pledge for Equal Representation in Arbitration, and promoted by ACICA’s Diversity Committee. While ACICA’s own statistics for appointments by the institution are increasingly diverse, parties within Australia have performed really poorly in that regard for their direct appointments. In good news however, within my own practice, in the last few 12 months I’ve had the pleasure of sitting with an equal number of men and women, and they come from diverse professional backgrounds and nations, including Australia, Canada, China, Dubai, France, Iran, Israel, Italy, Japan, Kenya, Korea, Mauritius, Nigeria, Singapore, Switzerland, UAE, UK, USA. So I’ve personally been witnessing a true diversification of the pool of arbitrators. Third, I think there are greater expectations on arbitrators to be transparent about availability and conflicts. These enhanced expectations are reflected in instruments such as the UNCITRAL Code of Conduct for Arbitrators in International Investment Disputes which I’ve been asked to follow in several recent cases. That trend is also reflected in the greater number of individuals choosing to leave big law firms to set up their own independent practices, join chambers or boutiques to help avoid conflicts. Fourth, and inevitably, we should all be educating ourselves about the potential promises and pitfalls of AI in the practice of international arbitration. I expect this is a topic that the members of the ACICA Rules Committee will examine as they consider the next iteration of the ACICA Rules.