Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50874
because Canada and most countries have adopted the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, companies have greater certainty they'll actually receive what they're owed should they prevail in a dispute. Taking a case to a foreign court that might be hostile to either the company or the issue at hand can be a bigger risk, he says. At the same time, arbitration has the advantage of allowing parties to exclude punitive damages common in places like U.S. courts as well as offering guarantees of confidentiality and more control over the process. Perhaps ironically, in Canada arbi- tration offers less certainty where the dispute is with a state rather than between two companies. That's because the prime vehicle for handling such battles is the International Centre for Settlement of Investment Disputes (ICSID), an institution of the World Bank established under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States. Because of its affiliation with the World Bank, ICSID decisions carry significant weight in discouraging states from invoking sovereign immu- nity in order to ignore an award. So far Canada has only signed, but not ratified, the convention that would bring it into force here. According to Martin, that's a problem for oil-and- gas companies with major investments overseas — ones often involving foreign governments — that could benefit from resolving problems through arbitration. "The difficulty is with the provinces," says Martin, citing Quebec and Alberta as the two jurisdictions most opposed to Canada invoking the convention. Fisher, nevertheless, says his com- pany has had a generally positive, but Commercial Arbitration in Canada A Guide to Domestic and International Arbitrations still mixed, record in using interna- tional arbitration. The key in his view is to actively involve in-house counsel in the process, particularly since, as people like Martin acknowledge, the overwhelming cost of arbitration stems from areas like hiring external lawyers and document production rather than what is paid to the institution itself. In that way, the company can hopefully avoid letting the proceedings drag on over disputes such as discovery, some- thing parties would be wise to limit anyway since the goal in the first place is to have an alternative to the trappings and costs of court litigation. "I guess we've had both good and bad experiences," says Fisher, noting arbitrators in some cases have rendered decisions surprisingly adverse to his company. "If you don't handle it prop- erly, it can be just as time-consuming and just as expensive, or more so." IH A voice of authority when you want a thorough understanding of each stage of the commercial arbitration process This resource addresses both the statutory and common law context within which international and domestic arbitrations are conducted. It considers issues arising from the interrelationship between arbitral and judicial proceedings, including the enforceability, severability and scope of arbitration clauses. It also covers the availability of stays of proceedings and rights of appeal. Commercial Arbitration in Canada considers both procedural and substantive issues arising in the conduct of arbitral proceedings including available rules of procedure and the enforcement of awards. Benefit from: • a discussion regarding why one might go to arbitration and how arbitration may be initiated • a discussion of stays of litigation, appeals and enforcement of awards • analysis explaining the boundaries between arbitral and court jurisdiction • case summaries • advice on drafting an agreement to go to arbitration, procedure and termination of arbitration • appendices including federal, Ontario and British Columbia arbitration legislation Looking for perspective? This invaluable looseleaf service summarizes the history of 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. Order your copy today! Looseleaf & binder • $210 • Releases 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 Canada Law Book is a Division of The Cartwright Group Ltd • Prices subject to change without notice, to applicable taxes and shipping & handling. 20 • AUGUST 2009 McEWAN_Commercial Arbitration (CL 1-2h).indd 1 INHOUSE CL0809 6/18/09 11:55:40 AM J. Kenneth McEwan, Q.C. and Ludmila B. H erbst