Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50874
In the end, the tribunal ruled it need- Drafting Mistakes Appointment of Arbitrators First – Designating as appointing authority, an institution that will not appoint arbitrators. Example: • AIPN, API, and UNCITRAL will not appoint arbitrators • Under UNCITRAL Arbitration Rules, secretary general of Permanent Court of Arbitration at The Hague will designate appointing authority • Secretary general will not appoint arbitrators unless parties have expressly agreed that secretary gen- eral can make appointments • In FSU PSA, the parties provided: "If the Second Party does not so appoint its arbitrator, the secretary general of the Permanent Court of Arbitration in The Hague shall appoint a second arbitrator in accor- dance with the [UNCITRAL] Rules." Second – Specifying arbitrator qualifications that are unrealistic & narrow. Example: "The arbitrator shall be a petroleum engineer with 10 years experience in the Pricaspian basin who is fluent in Russian and English." Recommended Language: "The arbitrator shall be qualified by education, training, and experience to decide the issues in dispute." Note: Arbitral institutions often ignore specific qualifications for arbitrators set out in arbitration pro- visions. Source: Dispute Resolution — Core Course on International Oil & Gas Law, ADR Governance Inc. by Tim Martin 16 • AUGUST 2009 ed more information, particularly about why the former employee couldn't attend the hearing. But the dispute, part of a mock international arbitration session during the International Association of Procedural Law conference in Toronto in June, illustrates some of the key issues that surface where lawyers from com- mon law and civil law backgrounds go head-to-head. Smith, of course, was pushing for a more adversarial approach while Fathallah, with his experience in the more inquisitorial style of civil law, fought hard against Smith's moves to introduce common law procedures he argued would merely slow down the the proceedings take depends largely on what the parties do. "It's what you make of it," says Tim Martin, a former vice president and special counsel respon- sible for dispute resolution at Calgary- based energy giant Nexen Inc. "If you plan properly, then you have an oppor- tunity to deal with disputes in a reason- able manner." For Barry Fisher, vice president, gen- eral counsel, and corporate secretary at SAP Canada Inc. in Toronto, what's key is negotiating arbitration clauses in a contract early on — "at the courting stage rather than the marital dishar- mony stage." In that way, his company, which provides software to businesses, The diffi culty is that when you're entering into these projects . . . quite often the last thing you want to talk about is a dispute. Tim Martin, formerly of Nexen Inc. process and make it unfair. "Witnesses tend to lie. They cannot be trusted to tell the truth," he said in rejecting his oppo- nent's bid to have the mock panel hear live testimony. The case, albeit fictitious, demon- strated some of the challenges inher- ent in dealing with disputes through international arbitration. While the pro- cess takes commercial battles out of the courts, it can still degenerate into legal battles over procedure. Those pit- falls may be especially relevant in cases involving parties from different legal traditions and, as a result, make arbi- tration cost as much and take as much time as traditional litigation. Advocates, however, counter arbitration institutions have enough experience in handling cases that such battles over process are minimal. As well, they argue, how long INHOUSE hopes to intercept potential battles dur- ing a future arbitration, something law- yers say parties negotiating a contract often fail to do. "The difficulty is that when you're entering into these projects . . . quite often the last thing you want to talk about is a dispute," says Martin, who now works as an arbitrator and media- tor. "It's not the last thing you should be discussing. It's probably the first thing." In Fisher's case, that means putting some detail on the rules of engagement in the contract. Typically, for example, lawyers at SAP will insert a clause stating all disputes will go to arbitration except for those involving intellectual property. "We will never allow the ownership of intellectual property to be determined by an arbitration," says Fisher. "It's the core of our business. We cannot afford to have someone get it wrong."