Simon Foote

Contact

Telephone: +64 9-307-8784

Mobile: +64 27-243-8370

[email protected]

Post: PO Box 1121, Shortland Street, Auckland, New Zealand 1140.

Simon is a commercial litigator with considerable advocacy experience in commercial, criminal and regulatory matters and particular expertise in complex construction and engineering disputes and international arbitration.

His construction and engineering dispute experience includes three major cases about power stations. Simon acted for Genesis Power in a 10 month High Court trial involving multiple engineering disciplines bearing on the performance of a co-generation power plant.  In an ongoing international arbitration, Simon is briefed by Australian solicitors to act for a Japanese client concerning the commissioning and performance of a geothermal power plant.  Simon has also acted for New Zealand’s national rail operator on matters concerning railway engineering and risk management.

Simon is regularly briefed by insurance companies in respect of disputes arising out of the Christchurch earthquakes.  He has also acted for builders, architects, project managers and home owners in leaky building litigation.

Simon has broad experience in other commercial litigation.  He has conducted trials about dairy farms and arable and deer farming.  He has acted in numerous shareholder disputes; for a national shipping register; for boat builders; and in defamation, copyright, family protection, family trusts and matrimonial property matters.

Simon has a particular interest in investment treaty arbitration and has been claimant’s counsel in an investment treaty claim against Australia as well as advising corporates on investment treaty issues. Simon has a Diploma in International Commercial Arbitration and is presently a PhD Candidate in investment treaty law at Victoria University. Simon chaired the World Bar Conference session on investment treaties in September 2014, presented on the TPPA at the AMINZ Conference in 2016 and appeared for AMINZ before the TPPA Select Committee.

Simon is a member of Bankside’s Singapore Chambers (with Sir Ian Barker QC, David Williams QC and Campbell McLachlan QC) and is a Fellow of the Chartered Institute of Arbitrators (UK) and the Arbitrators’ and Mediators’ Institute of New Zealand. Simon has been appointed as an arbitrator in domestic arbitrations.

Simon spent three years as a Crown Prosecutor.  He is a member of the Crown Panel for Manukau City.  He has acted for defendants in finance company prosecutions brought by the Serious Fraud Office and the Financial Markets Authority.

Recent and Notable Cases

  • Lead counsel for AAI Insurance in Court of Appeal hearing concerning the existence of a settlement agreement in respect of commercial buildings damaged in the Christchurch earthquakes.
  • Lead counsel in a domestic arbitration about the intra-family sale and value of a large parcel of arabl farm land in South Canterbury.
  • Lead counsel in a High Court trial concerning misrepresentation in the sale and purchase of a Northland dairy farm.
  • Junior counsel (to David Goddard QC) for Vero Insurance in a High Court trial about earthquake damage to the Britten Motorcycle Museum and lead counsel for Vero and AAI in other High Court earthquake related disputes.
  • Junior counsel (to Tom Weston QC) for a Japanese client in ongoing international commercial arbitration proceedings concerning a geothermal power station.
  • Counsel for two directors of Dominion Finance in FMA regulatory proceedings.
  • Lead Counsel for a director of a log broking and shipping company in a $30 million shareholder dispute.
  • Junior counsel (to Joe Smouha QC and David Williams QC) for Philip Morris Tobacco in investment treaty arbitration against Australia concerning legislation mandating plain packaging of cigarettes.
  • Junior counsel (to Tom Weston QC) for Genesis Power in long running litigation against Carter Holt Harvey and Rolls-Royce concerning the construction and operation of a co-generation power plant in New Zealand.  This matter culminated in a ten month trial in the High Court in 2009-2010.
  • Lead counsel for the successful party in the Court of Appeal’s leading decision regarding director’s liability under the Fair Trading Act.
  • Lead counsel for the Taiwanese Shipping Register in successful defence of High Court litigation concerning a leaky ship involving complex jurisdictional and duty of care issues.
  • Lead counsel for Mainzeal Construction Limited in a leaky apartment tower matter worth approximately $20 million and for a project manager exonerated from liability in leaky home litigation.
  • Junior counsel (to Justin Smith) for Tranz Rail Limited in R v Tranz Rail Ltd, a successful defence of the national rail operator against Crimes Act charges relating to injuries suffered by a young passenger who fell from an inter-city train.
  • One of Tranz Rail’s counsel at the 2000 Ministerial Inquiry into Health and Safety in that industry.
  • Lead counsel in High Court equitable claim concerning succession issues on a large family farming operation in the South Island.
  • Lead counsel in a trial concerning transfer of dairy cooperative shares under sale and purchase agreement for a dairy farm.
  • Counsel for Bollywood movie distributors in New Zealand in numerous copyright cases.
  • Counsel for estates and trustees, beneficiaries and claimants in estate and trust matters.
  • Lead and junior counsel for the Crown in approximately 60 criminal trials involving a wide range of indictable offences.

Qualifications and Career

Simon has practiced as a barrister sole since 2002.  Prior to this, he spent five years as a litigator at Russell McVeagh, two years with the International Arbitration Team at Clifford Chance at London and three years as a Crown Prosecutor.

Simon graduated LLB (Hons) from the University of Canterbury in 1992.  He was admitted to the Bar in 1993.  He also holds a Diploma in International Commercial Arbitration (DipICArb, UK) and is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and the Arbitrators’ and Mediators’ Institute of New Zealand (FAMINZ (Arb)). He is currently a PhD Candidate at Victoria University of Wellington.  His thesis concerns corporate nationality and treaty shopping in investment treaty law, and is supervised by Professor Campbell McLachlan QC.

Simon has co-authored (with David Williams QC) a chapter in Evolution in Investment Treaty Law and Arbitration, Cambridge University Press, 2011 (Brown and Miles, ed) titled Recent Developments in the Approach to Identifying an ‘Investment’ Pursuant to Article 25(1) of the ICSID Convention.

He has also published the following articles:

  • The Obligation of Arbitrators to Address all Issues Which Fall for Determination But No More, Asian International Arbitration Journal, 2014 (10), p.47, Simon Foote and James Herbert.
  • New Zealand: Appeal Court Affirms Pro-enforcement Approach, Global Arbitration Review, 27 February 2013, David AR Williams QC and Simon Foote.
  • Agreements to Arbitrate: the Severability of Illegal Contractual Promises, NZ Lawyer, Issue 203, 12, Simon Foote and Anja Borchardt.
  • Reflections on a Marathon Trial [2010] NZLJ 213, Tom Weston QC and Simon Foote.
  • Limitation Clauses [2010] NZLJ 317, Tom Weston QC and Simon Foote.
  • Caveat Mediator: Exceptions to Privilege for Settlement Negotiations, NZ Lawyer, Issue 170, 17, Simon Foote and Anja Borchardt.

Simon is a current Council member of the New Zealand Bar Association, was Deputy Chair of the Organising Committee for the World Bar Conference held in Queenstown in September, 2014 and is Chair of the organising committee for the 2016 New Zealand Bar Association Conference.

Simon was a director of Bankside Chambers Limited, Auckland from 2012 – 2014 and Chairman in 2015.

Simon is a member of the Crown Panel for Manukau City.

Affiliations