Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50894
FEATURE LITIGATION V. ARBITRATION When a dispute arises, the decision whether to litigate or arbitrate requires careful consideration. There are pros and cons to both scenarios, and some say the bloom is starting to come off the arbitration rose. By Geoff Kirbyson T o litigate or to arbitrate, that is the question. The answer, however, is not as straightforward as it might seem for in-house counsel. There are numerous pros and cons to both strategies and there is no cookie- cutter solution. Individual circumstances in one case might call for arbitration, while different circumstances in a similar case might convince one to go to court. Arbitration is generally considered to be faster, less expen- sive, and more private than litigation. Court cases, on the other hand, are more structured, tend to rely more on precedence, and can be readily appealed. In a commercial context, virtually any type of contested con- tractual agreement can be arbitrated or litigated — mergers and acquisitions, a lease renewal, who's at fault for a product defect, or a dispute over the delivery of goods and services. Richard Leipsic, vice president and general counsel for Can- west Global Communications Corp., Canada's largest private media conglomerate, says privacy is often the most sought-after element through arbitration. By opting against the court process, parties on both sides can avoid the glaring spotlight that often shines, particularly in high-profile or contentious cases, from media and public access to the proceedings. He says another often-cited benefit of arbitration is both sides have a certain amount of control over the process and can play a role in setting the ground rules for the proceedings. For example, you can decide whether you want to present to one or three arbitrators. In complicated financial cases, you could include a provision that a specialist, such as an accountant, ad- vises an arbitrator. "You're not completely reliant on a judge to have accounting expertise [in arbitration]. It's not to say you couldn't have ex- perts present evidence but it would be advantageous to have an accountant as an arbitrator, or as an adviser to the arbitrator, so you can have a better assurance of getting a degree of expertise on the case," he says. "If you're going to court, all you know is you're going to get a judge." Leipsic says many people consider arbitration to be less cost- ly than litigation but he thinks that might be oversimplifying things. Both sides have to pay their own legal fees, the arbitra- tor's fee, and rent for the venue. In a trial, the judges don't charge C ANADIAN Lawyer INHOUSE JUNE 2008 7