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Also key for Fisher is inserting some language about who the arbitrator will be. Because disputes usually involve software that SAP has provided to a business, finding someone who has both the technical knowledge to understand the dispute as well as legal training as a neutral arbitrator can be difficult. To ensure companies get someone quali- fied, contracts will often stipulate each party can name a few people it prefers, with the hope they can agree on who the arbitrator should be. Often, Fisher adds, that person won't be someone who is easily available. "It's like finding a con- tractor for your house. The best ones are busy doing it." Views on what exactly should go into an arbitration clause differ. For some people, such as Toronto arbitration practitioner Joel Richler, simple works best. "Less is better is sort of the gen- eral rule," says Richler, a partner with Blake Cassels & Graydon LLP. He advises against including provisions on discovery in an arbitration clause, par- ticularly since the notion of pre-trial investigations is a foreign one in Europe and "because you don't know in advance what the dispute is going to be about." Instead, he says, companies are better to avoid risking litigation over a dis- covery clause by leaving the decision on whether to allow it to the arbitrator, who in many cases will compromise on the issue by setting strict time limits on depositions. In adopting the simplicity rule, Richler also recommends compa- nies designate a known international Get Our Environmental Law Specialists*on Your Team! Our team of environmental lawyers includes 5 Environmental Law Specialists* We find practical business solutions to environmental problems. Call us. arbitration institution — such as the Paris-based International Chamber of Commerce's International Court of Arbitration (ICC), the American Arbitration Association's International Centre for Dispute Resolution (ICDR), or the London Court of International Arbitration (LCIA) — to hear the dis- pute. That way, they can avoid having to be specific about the rules in the contract by leaving them up to the insti- tution itself. At the same time, involving one of the major arbitration bodies adds legal weight to the process should the parties end up litigating. "That guaran- tees that the courts will recognize the clause," says Richler. Of course, the choice of an arbitra- tion institution isn't always an easy one. Americans, for example, tend to be www.willmsshier.com * Certified by the Law Society of Upper Canada Juli Abouchar 416 862 4836 Doug Petrie 416 862 4835 John Willms 416 862 4821 Donna Shier 416 862 4822 Marc McAree 416 862 4820 ENVIRONMENT, ENERGY & RESOURCES LAW Untitled-2 1 INHOUSE AUGUST 2009 • 12/19/08 10:08:47 AM 17