Legal news and trends for Canadian in-house counsel and c-suite executives
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www.bakernet.com ognizes arbitration as a legitimate dispute resolution process that is enforceable. Under the treaty, a local court must enforce an arbi- trator's award in the same way that one of its own orders is enforced. And if a party tries to subvert the process by launching a pre-emp- tive lawsuit, the courts are obliged to reject the action in favour of arbitration." Nevertheless, Casey says it's a good idea to select a Western nation as the place to hold an arbitration. That's because the law of the juris- diction where the arbitration takes place gov- erns any disputes about the process's fairness. "You want an arbitration-friendly jurisdiction," he says. "There's always wiggle room to watch out for at the local level." Even if the parties to a contract fail to include an arbitration clause in their agree- ment, they can still use this method to settle any disputes that arise. The parties are free to choose any dispute resolution mechanism, but agreeing to arbitration and its terms before- hand is clearly preferable to negotiating such arrangements once a dispute arises. Canadians drafting a commercial agreement with a foreign company are well-advised, says Casey, to "keep their arbitration clauses short and to use language that has been tested in subject to judicial interpretation." Other items on the contract preparation checklist should include the place of arbitra- tion, the language to be used during the proceedings and the legal system that governs the process. But above all, Casey adds, rely on experienced counsel. "Protect yourself," he says. "Most business deals are drafted by commercial lawyers, but when it comes to the actual arbitration you need litigators. Their input is required beforehand. But even litigators might not appreciate some of the differences between an international arbitration and a domestic court case. as in a court proceeding. For one thing, there may not be any oral discovery, so you better have all your facts and your case marshaled before you start." "For another thing, it's OK to go arbitrator shopping. You can agree to a three-person panel which allows both sides to choose neu- trals who are expert in the disputed field, whether they are lawyers or not. You can even interview them to assess their knowledge." Casey is one of about only a dozen lawyers Brookfield Place 181 Bay Street, Suite 2100 Toronto, Ontario M5J 2T3 Tel.: +1 416 863 1221 At Baker & McKenzie, we have helped companies plan, implement and enforce effective international arbitration programmes for nearly half a century. Our global arbitration practice includes more than 200 lawyers throughout the world, most with a specific industry emphasis. We provide end-to-end advice and execution across the international arbitration process, from helping you decide whether arbitration is suitable, to advising on steps you can take to avoid or resolve disputes before proceedings begin, to appearing as counsel and enforcing or challenging the award. Whether the stakes are in the millions or billions, our intimate knowledge of the rules, procedures and cultural dynamics leading arbitration institutions and bodies is a critical advantage. Baker & McKenzie LLP, an Ontario limited liability partnership, is a member of Baker & McKenzie International, a Swiss Verein. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an "office" means an office in any such firm. in Canada who make international commercial arbi- tration a major part of their practice. In his three- decade career, he has served as both an arbitrator or as counsel to a party in arbitration. He's listed in Euromoney's Guide to the World Leading Experts in Commercial Arbitration and in Who's Who in Public International Law. His firm, Baker & McKenzie, is uniquely positioned in Canada to assist in international arbitrations. With offices around the world, from Almaty (Kazakhstan's largest city and its former capital) to Zurich, Baker Resolution Practice and 200 in its Global Arbitration Practice Group. "We can put a local, legal support team on the ground almost anywhere in the world," says Casey. International Arbitration C ANADIAN Lawyer INHOUSE APRIL 2008 15