David Starkoff is a partner in the International Dispute Resolution practice, focusing on the construction, infrastructure, energy and projects sectors, with a particular expertise in competition (antitrust) and regulatory issues.

David has two decades’ experience with construction, infrastructure and energy projects, including negotiations, contract administration, mediation, expert determination, security of payment adjudication, dispute resolution boards, Supreme Court litigation, and domestic and international commercial arbitration.

David advises on transaction structuring and potential competition/antitrust issues arising, as well as obtaining merger clearances from the Australian Competition and Consumer Commission (ACCC), across diverse sectors such as banking, energy, infrastructure, information services, minerals processing, and mining. David brings to his advice a keen understanding of the regulator’s perspective – he has acted for the ACCC in enforcement and regulatory proceedings; he has acted for the Australian Energy Regulator in enforcement matters; and he has acted for the Australian Securities and Investments Commission – the corporate regulator – in substantial civil penalty proceedings.

With a reputation for legal excellence, problem-solving and quickly understanding legal and commercial issues, as well as a background in mathematics and computer science, David stands out in complex and high-value matters.

David has taught in the Masters programs at both the University of Melbourne and Sydney Law School.

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Key Recent Experience

  • Acting for a construction contractor in an international commercial arbitration under International Chamber of Commerce (ICC) rules arising out of the design and construction of part of onshore liquefied natural gas (LNG) facilities, with claims and counterclaims approaching AU$1 billion.
  • Acting for a principal in an arbitration under ICC rules against a head contractor for a gas pipeline, principally responsible for coordinating the defence to delay and disruption claims (of over AU$500 million), computer forensic issues and coordinating electronic hearing arrangements.
  • Acting for the Australian Securities and Investments Commission (ASIC) in substantial Supreme Court of Queensland proceedings alleging dishonest misuse of over AU$120 million from a managed investment scheme. After a 15-week trial, ASIC proved every contravention it pressed and significant penalties were awarded. ASIC was successful on appeal to the Court of Appeal and the High Court.
  • Acting for the Kingdom of Spain in Federal Court of Australia proceedings about the recognition and enforcement of International Centre for Settlement of Investment Disputes (ICSID) arbitral awards.

Construction and Project Experience

  • Advising and acting for parties in both East Coast Model and West Coast Model security of payment processes (Queensland, New South Wales, Victoria, South Australia, Western Australia and Northern Territory), including preparing payment claims, payment schedules, adjudication applications, adjudication responses and applications to set aside adjudicators’ determinations.
  • Acting for a construction contractor in an international commercial arbitration under ICC rules arising out of the design and construction of part of onshore LNG facilities, with claims and counterclaims approaching AU$1 billion.
  • Acting for a principal in an ICC arbitration against a head contractor for a gas pipeline, principally responsible for coordinating the defence to delay and disruption claims (of over AU$500 million), computer forensic issues and coordinating electronic hearing arrangements.
  • Advising an engineering consultancy about the Davis Aerodrome Project in the Australian Antarctic Territory.
  • Advising about dispute resolution issues associated with a public-private partnership (PPP) in Uzbekistan.
  • Advising Tennis NSW in relation to the time-critical and complex upgrade of Ken Rosewall Arena, including negotiating the main contract and claims and contract administration advice.
  • Advising the engineering, procurement and construction (EPC) contractor of a Queensland wind farm project about Queensland building licensing issues, and providing claims and contract administration advice.
  • Drafting submissions on behalf of the principal in a confidential dispute resolution board hearing on disputed variations, particularly focused on the application of time bars and the law of penalties.
  • Acting in Supreme Court of New South Wales proceedings about a disputed entitlement to call on unconditional performance bonds.
  • Acting in Supreme Court of Queensland proceedings about the design of alumina calciners.
  • Acting for a property developer in Supreme Court of New South Wales proceedings alleging unconscionable conduct under the Australian Consumer Law, and economic duress.
  • Advising a principal on significant variation and delay claims made by the builder of a power station and negotiating a commercial settlement that protected the principal’s interests when the builder became insolvent.
  • Acting in Supreme Court of Queensland proceedings about the upgrade of mineral processing equipment.
  • Acting for a developer in Supreme Court of New South Wales proceedings relating to non-performance of air conditioning in an office building.
  • Acting for Voyages Indigenous Tourism Australia in Supreme Court of New South Wales proceedings about wall panelling and air-conditioning issues arising out of the renovation of the Ayers Rock Resort and Uluṟu Meeting Place.
  • Acting for a contractor in Federal Court of Australia proceedings commenced by a subcontractor’s liquidator to recover a refunded mistaken overpayment.
  • Acting for a mine operator in Supreme Court of Queensland proceedings about the price to be paid for the extended term under a contract mining agreement.
  • Acting for principals and head contractors subject to subcontractors’ charges, particularly in Queensland.

Regulatory Experience

  • Acting as lead regulatory lawyer for the CopperString 1.0 consortium, the proponent for a proposed new electricity transmission line in Queensland. Advised on all regulatory aspects, including potential derogations to the National Electricity Rules and amending legislation.
  • Advising a European institutional investor about electricity regulatory issues in the NSW government’s privatisation of TransGrid.
  • Advising an electricity network operator about potential legislative reforms.
  • Acting for an infrastructure owner in successfully resisting declaration of rail infrastructure under Part IIIA of the Trade Practices Act 1974 (Cth).
  • Acting for the ACCC in merits review proceedings in the Australian Competition Tribunal, which upheld the ACCC’s decision about proposed terms of access to the mobile terminating access service. The proceedings involved analysing economic issues regarding the pricing of telecommunications services, two-sided markets, consideration of efficiently incurred costs, methodologies for allocation of fixed and common costs, methodologies for approximating long-run marginal cost and externality surcharges.
  • Acting for the ACCC in judicial review proceedings about a telecommunications pricing methodology, involving expert econometric evidence about index numbers.
  • Advising on access to water and water planning under Queensland water legislation and application of pricing regimes for certain irrigation water uses.
  • Advising customers about electricity regulatory issues.
  • Advising infrastructure owners about obligations to offer access and permissible terms of access to infrastructure.

Enforcement Experience

  • Acting for the Australian Securities and Investments Commission in substantial Supreme Court of Queensland proceedings alleging dishonest misuse of over AU$120 million from a managed investment scheme. After a 15-week trial, ASIC proved every contravention it pressed and significant penalties were awarded. ASIC was successful on appeal to the Court of Appeal and the High Court.
  • Acting for the ACCC in numerous enforcement proceedings, including proceedings in the Federal Court of Australia for civil penalties (for resale price maintenance) and other relief (for misleading conduct, unconscionable conduct, pyramid selling and breaches of the Franchising Code of Conduct), including proceedings that were settled by way of section 87B undertakings.
  • Advising the AER about alleged breaches of the National Electricity Rules, which led to the issue of infringement notices.
  • Advising commercial clients about responding to ACCC investigations and notices under section 155 of the Trade Practices Act 1974 (Cth) and Competition and Consumer Act 2010 (Cth).
  • Acting for examinees in examinations under section 19 of the Australian Securities and Investments Commission Act 2001 (Cth).

Antitrust/Competition and Consumer Experience

  • Advising commercial and governmental clients about transactional and structuring options to address competition and antitrust issues, including advising about restructuring or documentation of transactions.
  • Advising commercial and governmental clients about the competitive effects of proposed mergers and acquisitions, and drafting submissions to and liaising with the ACCC to obtain informal merger clearances.
  • Obtaining authorisations for otherwise anticompetitive conduct from the ACCC.
  • Preparing and lodging notifications with the ACCC to immunise otherwise prohibited exclusive dealing.
  • Conducting training for commercial clients about competition and consumer law obligations.
  • Acting for commercial clients subject to enforcement actions.

International and Domestic Arbitration Experience

  • Acting for the Kingdom of Spain in Federal Court of Australia proceedings about the recognition and enforcement of ICSID arbitral awards.
  • Acting for a construction contractor in an international commercial arbitration under ICC rules arising out of the design and construction of part of onshore LNG facilities, with claims and counterclaims approaching AU$1 billion.
  • Acting for a principal in an arbitration under ICC rules against a head contractor for a gas pipeline, principally responsible for coordinating the defence to delay and disruption claims (of over AU$500 million), computer forensic issues and coordinating electronic hearing arrangements.
  • Acting for a party with the benefit of a foreign international commercial arbitration award in enforcing the award in Australia.
  • Acting for a party the subject of a subpoena in aid of arbitration under Australian Centre for International Commercial Arbitration (ACICA) rules, including and preparing challenges to the subpoena and negotiating compliance.

Education

  • The University of Queensland, LL.B.
  • The University of Queensland, B.Sc. and University Medal

Admissions

  • New South Wales, 2012
  • Queensland, 2003
  • High Court of Australia, 2003

Memberships and Affiliations

  • Law Council of Australia, Business Law Section, Construction and Infrastructure Law Committee
  • Society of Construction Law Australia
  • Society of Construction Law
  • Law Society of NSW
  • Best Lawyers Australia 2023 (Litigation)

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  • “Setting the ground rules: Alternative approaches to governing law for transnational construction projects”, paper presented to SoCLA National Conference, 2019.
  • “Australia’s High Court provides guidance about when provisions will be penal”, Construction Law International, 2016.
  • Co-author, Delos Dispute Resolution Guide to Arbitration Places (GAP): Australia.
  • Co-author, “The doctrine of penalties survives in England – but what is its future in Australia?” Australian Construction Law Newsletter, 2016.
  • Co-author, “The effect of Andrews v. ANZ: Going beyond bank fees − it’s about performance too!” International Construction Law Review, 2013.
  • Co-author, Key contract clause precedents and notes, CCH Australian Contract Law Commentary.

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