David Mildon KC

With over 40 years in practice David is a dominant advocate and arbitrator within the international energy sector. Many of his energy cases concern disputes where the evidence of economists is critical, such as gas, coal and electricity price reviews, the role of contracts for differences and the markets for carbon credits and renewables’ certificates. David’s practice continues to grow and his appointments as expert determiner within the energy field reflect an industry recognition of David’s detailed knowledge within this sector. His practice also covers a wide range of international arbitration and dispute resolution including electricity litigation, related shipping, international sale of goods and financial issues, IRECs, renewables obligation and the like.

David has appeared as advocate or sat as arbitrator in diverse locations including not just the main arbitration centres of Singapore, Kuala Lumpur, Hong Kong, Dubai, Paris, Geneva, and Stockholm but also lesser known centres such as Budapest, Copenhagen, Lisbon and Antigua.

David also regularly speaks and writes papers on oil, gas and electricity related topics, along with the interaction between expert determination and arbitration at international conferences. He is one of the UK nationals listed in the Energy Arbitrators’ List and also in the US based Roster of International Arbitrators and a panellist of member of all major arbitral institutions.

David is now a full time arbitrator, mediator and Expert who continues to hold a practising certificate as a Barrister.

Arbitration and Expert Determination

David Mildon regularly accepts appointment as arbitrator within the fields of his practice both under institutional arrangements (eg DIAC, ICC, LCIA, EAA) and in ad hoc arbitrations. Over the last year he has sat as arbitrator in Dubai (DIAC), Budapest (Hungarian Chamber of Commerce), and Geneva (ad hoc). He appears as advocate in various types of arbitration (ICC, SIAC, LCIA, UNCITRAL, EAA, RSA, LMMA, LME) predominantly in London but also in Paris, Hong Kong, Singapore and elsewhere. He has appeared in court proceedings in England concerning arbitration including Barrington-Hume v AA Mutual International Insurance Company Ltd [1996] LRLR 19 (composite insurance – whether multiple arbitrations), Sheltam Rail v Mirambo [2008] 2 Lloyds Rep 195 (discontinuance of proceedings under 1996 Act), National Power Plc v National Grid Plc (CA, 16.7.98, 1998 Ll R Alert issue no.21) (interaction between the dispute resolution functions of the regulator and private arbitration in the electricity industry) and P T Thiess Contractors Indonesia v P T Kaltim Prima Coal [2011] EWHC 68 (Comm) (interaction between Singapore arbitration clause in substantive service agreement and London jurisdiction clause in security documentation).

David Mildon also appears as advocate in expert determinations and has acted as the decision maker under several expert determination clauses.

David Mildon spoke on Disputes Amongst Companies at the ICC/AIPN Conference on Dispute Resolution in the International Oil and Gas Business in Paris in October 2007. He delivered a paper on Gas Pricing Disputes at the ICC/AIPN (now AIEN) Paris conference on dispute resolution in October 2011. He spoke on dispute resolution under long term energy agreements at a private seminar in Brisbane, Australia in early February 2012.

Energy and Utilities

This is one of David Mildon’s most significant areas of specialisation. He regularly provides advocacy and advisory services throughout the energy sector worldwide. The subject matter includes oil, gas, coal, electricity, renewables and related topics such as utility regulation (including relevant parts of EU law such as the Internal Market Directives for gas and electricity), Climate Change Levy (including LEC), Renewables Obligation Certificates (ROC), and carbon trading (ETS etc). The forums in which he has appeared include expert determinations, arbitrations, regulatory dispute resolution bodies such as the PNE Panel (2003) as well as High Court litigation. In the High Court he has represented British Gas (Brent indexation dispute), Enterprise Oil Plc (Nelson field redetermination), National Power Plc (take or pay dispute for gas and separate litigation involving electricity connection charges), Corby Power Limited (take or pay), Barking Power Ltd (warranties on generating sets), Thames Water (electricity meter re-registration), BP Gas Marketing Ltd v Centrica Storage Ltd [2009] EWHC 732 (gas storage) amongst many others. He has recently made several determinations sitting “as expert and not as arbitrator” under clauses providing for expert determination in energy related contracts. He has acted in numerous price reviews and indexation disputes under long term energy contracts.

His energy work has a significant international dimension. Apart from all the major North Sea fields and UK/continent gas pipeline issues (Bacton-Zeebrugge and UK/Ireland), he has been involved in oil/gas disputes in Singapore, Indonesia (both oilfield and gas pipeline issues), the Philippines, Peru, Sakhalin, Algeria, Yemen and Trinidad. The contracts have been of all types including Production Sharing Agreements, Joint Operating Agreements, pipeline capacity agreements, Power Purchase Agreements, contracts for supply of steam (CHP units), coal purchase agreements, coal mining service agreements and numerous other forms of long term agreement. David Mildon has participated in the AIPN (now AIEN) drafting group for a standard Gas Transportation Agreement. Has worked on investment treaty (ICSID) claims including under the Energy Charter Treaty (the “ECT”).

In the electricity sector David Mildon’s work has been particularly wide ranging. He has made several expert determinations under clauses in Power Purchase Agreements requiring expert determination. He has appeared in numerous electricity industry arbitrations under Electricity Arbitration Association rules as well as appearing in regulatory matters such as the UK PNE Panel formed under the UK Balancing and Settlement Code. Much of his electricity work involves electricity related issues outside the UK. such as grid trade disputes under EFET terms (continental Europe) and transmission related issues under the former UCTE system (now ENTSO-E). He has acted as arbitrator in Hungary under a Framework Agreement for Electricity Sale and Purchase in central Europe. He has advised on the practical implications of grid trade futures and derivatives designed so as to be Islamic law compliant (Middle East). He is occasionally engaged as co-counsel in disputes where the electricity dimension is ancillary (e.g. power plant construction).

Member

SIAC (Singapore International Arbitration Centre) Panel
DIAC (Dubai International Arbitration Centre) Panel
EAA (Electricity Arbitration Association) Panel
Energy Arbitrators’ List Lloyd’s Enforcement Tribunal Chairman (Panel)
London Court of International Arbitration
ICC United Kingdom London
Maritime Arbitrators Association (Supporting Member)
London Shipping Law Centre
London Common Law and Commercial Bar Association (Committee)
Commercial Bar Association (COMBAR)

Publications

“Agreements to Agree: Does Expert Determination Provide a Default Solution?”, TDM, Vol. 2, November 2005 (http://www.transnational-dispute-management.com)
“Property in commingled gas: the legal structures compared”, OGEL, vol.4, May 2006, (http://www.gasandoil.com/ogel/)

Education

1980: Council of Legal Education
1979: LLB (First Class Hons), Emmanuel College, Cambridge
1978: Law Tripos Part II (First Class Hons), Emmanuel College, Cambridge
1978: Cambridge University Certificate of Competent Knowledge in French
1976: Economics Tripos Part I (First Class Hons), Emmanuel College, Cambridge

Languages

French