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LEGAL REPORT: LITIGATION been a growing realization that, for international disputes, the court systems in most cases just aren't adequate." Another widely touted ad- vantage of arbitration is that, unlike in civil litigation where dueling parties are stuck with the judge they're given, parties agreeing to arbitrate can pick the arbitrator or arbitrators who will determine their fate. "People are beginning to see the real benefits of arbitration over the court system," says Al- lan Stitt, president of the Stitt Feld Handy Group and ADR Chambers Inc., based in Toronto, and author of Alternative Dispute Resolution for Orga- nizations. "People see how you can get an expert arbitrator deciding your case rather than some random judge who may or may not know anything about the issues in dispute." "Wherever you go in the world where you can't drink the water, don't trust the judges." — DAVID HAIGH, BURNET DUCKWORTH & PALMER LLP Parties can negotiate a number of McEwan. J. CAC-GDIA 12/5/07 11:06 AM Page 1 factors before the dispute arises in the arbitration clauses of their commercial contract or after the dispute arises, in- cluding the substantive law that will be applied to arbitration, the language that will be spoken, and the seat of arbitra- tion. The seat of arbitration governs the procedural law and can be a neutral place so that no one gets a home-court advantage. Some businesses still assume that arbitration is automatically confidential, says Babak Barin, co-head of the dispute resolu- tion team at BCF LLP in Mon- treal and an author of The Osler Guide to Commercial Arbitration in Canada. "But it's not, it's pri- vate," he says. "There's no such thing, in Canada at least, as an implied obligation of confiden- tiality." However, businesses can make arbitration proceedings confidential by putting a confidential- ity rider in the arbitration clause of their commercial agreement, he says. Except under some specific and rare circum- stances, the confidentiality rider will prevent business secrets and dirty laun- dry aired during the arbitration from becoming public knowledge. Another commonly held fallacy is This book addresses both the statutory and common law context within which international and domestic arbitrations are conducted in Canada. In addition, it considers issues arising from the interrelationship of arbitral proceedings with the courts, including the enforceability, severability, and scope of arbitration clauses, as well as the availability of stays of proceedings and rights of appeal. Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations also considers both procedural and substantive issues arising in the conduct of arbitral proceedings including available rules of procedure and the enforcement of awards. Looking for perspective? This invaluable looseleaf service summarizes the historical background to arbitration as a form of dispute resolution, as well as the evolution of public policy promoting arbitral autonomy. Both statute and common law of all Canadian jurisdictions are covered. Benefit from: • discussion regarding why one might go to arbitration • discussion of stays of litigation, appeals and enforcement awards • case summaries • advice on drafting an agreement to go to arbitration, procedure and termination, jurisdiction and authority Order your copy today! Looseleaf & binder • $197 • Supplements invoiced separately (1-2/yr) P/C 0120030000 • ISBN 0-88804-395-3 For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. • Free Shipping on pre-paid orders. Prices subject to change without notice, and to applicable taxes. 54 JANU AR Y 2008 www. C ANADIAN Law ye rmag.com CL0108 that arbitration is always faster and cheaper than the courts, says Barin. Ar- bitration is faster to schedule in places where the courts are slow because par- ties don't have to wait around for an available judge. But parties pay arbitra- tors an hourly rate, and businesses with a tactical reason to delay arbitration still attempt to derail the process the same way they do in the courts. "In general, arbitration can work extremely well, and extremely efficiently," says Haigh. "But are there instances where stupid or crazy people thwart the system? Of course they do. If the world wasn't like that, I wouldn't be earning a living." But since the arbitrator or arbitrators are normally the ones that hear all the motions leading up to the oral hearing before they decide the merits, that tends to dissuade parties from acting unrea- sonably, says Andrew Little, chairman of the commercial arbitration and ADR specialty group at Osler Hoskin & Har- court LLP in Calgary, and an author of The Osler Guide to Commercial Arbi- tration in Canada. Arbitrators also tend to be stricter and more diligent about preventing people from bringing frivo- lous motions, says Stitt.