Legal news and trends for Canadian in-house counsel and c-suite executives
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even though I may have a trained arbi- trator knowledgeable about the subject matter — I do not want an individual to make a determination about intel- lectual property rights without a right of appeal." One of the touted advantages of arbi- tration is its finality, but for a core com- ponent of a company, in SAP Canada's case its intellectual property, the "all-in" risk is simply too great in Fisher's view. "In some matters, I cannot simply bet the company and take the risk on final- ity if that individual in my view gets it wrong." Fisher is much more comfort- able with the prospect of taking an intellectual property-related dispute to the Federal Court where judges regu- larly deal with IP issues, and there is an established path for appeal. It is up to corporate counsel to determine what the "crown jewels" are in their respec- tive companies when crafting arbitra- tion language, Fisher says. Even as international arbitration continues to gain favour with com- panies generally, some counsel still look on their courts with favour, notes Fisher. "I differ with some of my inter- national colleagues within my organi- zation. Some prefer the security and procedures of courts." Relying on the courts to settle opera- tional disputes between two parties can be unpredictable and uncertain and the chance for an arbitrary or biased deci- sion has provided the main impetus for the growth in arbitration. Resolving corporate disputes through the courts can provide a winning result that often- times proves to be unenforceable in the other party's home country. That is not merely an occurrence in developing countries but in jurisdictions such as Europe. Considering the creation of interna- tional arbitration more like insurance and less like litigation might be a better way to approach the subject. "When I talk to corporate counsel, I will often talk about international arbitration as being part of risk management because that tends to get corporate counsel's attention as something important," says Barry Leon, a partner in the inter- national arbitration group of Ottawa's Perley-Robertson Hill & McDougall LLP who also regularly acts as an arbi- trator. "Part of it is, 'If things go badly, how do we get out and get our money out,' and international arbitration is something to think about," he says. While the creation of an arbitration clause is understandably just about the last thing to consider when two parties are dealing with the complexities of a transnational business partnership, it can be an opportunity to insert a clause more favourable to your corporation's side, notes Leon. "Take a little bit of time on the front end on your own side and think about 'What is the kind of 28 • APRIL 2011 ntitled-1 1 INHOUSE 11/30/10 8:46:25 AM