William H. Knull, III
I began to devote my practice exclusively to service as an independent arbitrator after retiring as a partner of Mayer Brown LLP effective December 31, 2014 after 37 years litigating and arbitrating complex disputes, primarily involving transnational disputes, first with Sullivan & Cromwell in New York and from 1986 through 2014 with Mayer Brown in Houston.
From my first overseas trip as a lawyer and my introduction to international arbitration several years later, I have acted as counsel and lead counsel in international litigation and arbitration involving oil and gas, telecommunications, mergers and acquisitions, investor-state disputes, power generation, etc., in a broad range of highly complex technical, factual, legal and procedural contexts.
As those who have worked with or against me will attest, I have conducted these cases throughout as a hands-on advocate. As a result, I have a first-hand appreciation for the challenges faced by arbitral tribunals in fashioning proceedings to secure a fair, prompt and efficient resolution of the most complex disputes, consistent with the needs of the case, choices and preferences of the parties, governing rules and applicable law.
As my experience as an arbitrator expands, I am finding my years of advocacy invaluable in tailoring procedures to the issues presented, absorbing and digesting complex evidence and law, balancing and weighing the strengths and weaknesses of evidence and arguments, and reaching prompt, efficient and just resolutions.
My experience as both advocate and arbitrator has not infrequently involved the issue of dispositive motions. From the perspective of the arbitrator, the issue requires a careful balancing of important but potentially conflicting considerations. On the one hand, opening the arbitration process to unregulated motion practice threatens to bog the process down, resulting in unnecessary and avoidable cost and delay. On the other hand, the early resolution of appropriate elements of a dispute may expedite the overall resolution; indeed, failure to hear and resolve such issues can itself result in unnecessary and avoidable cost and delay. At least three types of motions, drawn from the principles incorporated in familiar rules of court, may justify early disposition: (i) jurisdictional motions, for obvious reasons; (ii) motions contending that, assuming all facts pleaded by claimant/counterclaimant are true and making all inferences in favor of the non-moving party, there is no set facts that would entitle the non-movant to prevail under the governing law and contract; and (iii) motions establishing that undisputed facts establish that the moving party is entitled to prevail as a matter of law under the contract. Balancing these competing interests consistently with fundamental considerations of fairness and due process requires the arbitrator to manage the motion process carefully, through scheduling and pre-screening to ensure that potentially meritorious motions may be heard without undue disruption to the overall process while reserving less clearcut contentions for resolution along with the merits.
One common element of many of the large cases I have handled as an advocate was the central role of complex computational issues, including, for example, oil and gas reserve estimation and damage calculations based on the present value of projected future income streams. As a result, I am quite comfortable with complex mathematical models and the analysis of component variables that determine disputed outcomes. An example can be seen in the article of which I was lead author, published in both The Journal of Energy and Natural Resources and TransnationalDisputeManagement.com titled Accounting for Uncertainty in Discounted Cash Flow Valuation of Upstream Oil and Gas Investments (full cite listed with publications).
For more than twenty years, I have been an active participant in and follower of arbitrations involving parties and projects in Latin America. As a result, I undertook and sustained an intense study of Spanish, which my very gifted teacher began by parsing vocabulary and grammar lessons from paragraphs taken from publicly available laudos, progressing to readings from literature and periodicals from the region and debates on current events. I remain an avid student of the history, culture and politics of the Hispanic world, as well as the language itself, through reading Spanish language newspapers and works of fiction and non-fiction and frequent travel. While I do not profess oral fluency, a great deal of my work in the last ten years profited greatly from my ability to analyze documents, statutes, reference materials and oral testimony in the original Spanish.
International arbitration is essential to the increasingly inter-connected world. Its future depends in no small part on the availability of a pool of expert arbitrators able to resolve disputes fairly, promptly and cost-effectively. I am fully committed to doing what I can to contribute to that objective.