Boston in Practice: Interview with Phil O'Neill

By Melissa (Lisa) Thompson, Arbitrator and Partner, Robinson & Cole LLP, Boston

Phil O’Neill is an active international and domestic arbitrator who has served on approximately 140 large, complex cases; presided over approximately 60 trials; and adjudicated billions of dollars in claims arising in the USA and around the world. He is currently on the institutional arbitration panels and listings of a dozen arbitral institutions in North America, Europe and Asia. He was the Nomura Lecturer in Law on International Arbitration at Harvard Law School, and has taught international arbitration for many years as an Adjunct Professor at Boston College and Boston University Law Schools. He has authored a textbook, teaching manual, book chapters and numerous articles on arbitration, and is a frequent speaker on the topic. In addition, Mr. O'Neill has been repeatedly listed in America’s Best Lawyers in International Arbitration (commercial and governmental), as well as among the “World’s Finest Lawyers” by Expert Guides in International Commercial Arbitration. He is on the Silicon Valley Arbitration Center's short list of the world's best technology arbitrators. He also is a fellow in the U.S. based College of Commercial Arbitrators, as well as in England’s Chartered Institute of Arbitrators, which also recognizes him as a “Chartered Arbitrator.”

What is your role with BIAC -- the Boston International Arbitration Council?

I am currently serving as the Co-Chair of the BIAC Board of Directors, alongside Professor William Park, who is a professor at the Boston University School of Law and past President of the London Court of International Arbitration (LCIA).

How did you get started as an arbitrator?

While an associate at Hale and Dorr, I was representing a client in an arbitration in London before an English barrister acting as sole arbitrator. I wondered — how do I get that job someday? It was a very high profile case arising from the establishment of Saudi Arabia’s health care industry. The arbitral institution involved was on the lookout for the next generation of arbitrators, so after they saw how I performed in that case, they soon recruited me to sit on cases as arbitrator. Other arbitral institutions also wanted to groom the next generation of decision makers so I found my way on to their panels as well. My law firm was supportive, for my partners saw the competitive advantage in being able to say to clients that I had sat as an arbitrator under the auspices of various institutions and had insight into how the panel decisional process actually worked.

What types of arbitrations have you handled?

The range of complex commercial disputes has been very broad in terms of the industries involved, with the 140-plus arbitrations I have presided over to date. They have included aerospace and defense, life sciences, communications, distribution and supply, private equity, acquisitions, as well as technological disputes ranging from genetic engineering to the development of the F-35 fighter jet. Most of the cases involved private parties, but sometime sovereigns, quasi public entities or state enterprises participated as well.

How do you like to manage your arbitrators – are there any special tactics that you find useful?

I believe party autonomy is at the core of arbitration, so I tend to offer a menu of possible approaches to counsel to see if we can figure out what works best to suit the particular needs of the case. As for special tactics, having seen an enormous variety of procedural issues arise in past cases, I tend to flag them early in the proceeding, if I sense they are possibilities, and ask counsel to consider how best to deal with them. I may also describe alternative approaches to consider. If they disagree on what course to pursue, I give them certainty.

Why did you get involved with BIAC?

Over the years there have been episodic efforts to increase Boston’s profile in the international arbitration community. The recent effort through BIAC has been far more impactful already through a very well organized and diverse collective effort. The change in circumstance that has impelled that success is the depth of experienced counsel and arbitrators, which has matured along with Boston based industries, such as in the life sciences, computer, and technology industries, the venture capital community, and other Boston-based business sectors that are increasingly global in reach.

Have you arbitrated cases in Boston?

I have presided over a number of cases sited in Boston. The types of cases have included life science and health care disputes, as well as garden variety business fights. There have been cases where two foreign parties (for example, Japanese and English) have picked Boston as an in-between point to have their international dispute resolved.

What advantages do you see for Boston as a seat for arbitration?

I think there is a very significant advantage in choosing Boston as a seat for arbitration, in light of area expertise in the technology, life sciences and health care industries. This is a real magnet for attracting cases here compared with other venues. Boston also has a long history with the computer industry that gave rise to very complex intellectual property and trade secret cases, which is another particular strength of our arbitral dispute resolution bar. With that depth of experience in fighting such battles, coupled with the intellectual fire power of our academic community and area industry for expertise to assist arbitral panels here, you have a world class venue that is blossoming in this century.