mARCH 2012
www.lawyer-monthly.com Global Arbitration 19
proceeds before the tribunal. Recent Supreme Court of Canada jurisprudence has made it clear that the enforcement of arbitral awards is subject to local limitation periods, which vary significantly in this respect across Canada.
Q
what, in your opinion, are the advantages of arbitration as a dispute resolution method as opposed to court action?
There are a number of advantages to arbitration, in our view. Firstly, the arbitration process brings with it the parties’ ability to be sure as to who will adjudicate their dispute. In contrast, in a court action, the parties have no control over who the presiding judge who will be. Secondly, arbitration permits the parties to control the process. Arbitration is a consensual form of dispute resolution and, accordingly, the parties are at liberty to tailor the process to their particular needs, knowing that, if there is a dispute as to the process, the arbitral tribunal can provide effective case management. The third advantage associated with arbitration is the speed at which the dispute is finally resolved. While some arbitrations take longer than others, in our experience, on average a complex commercial arbitration can be resolved in approximately one year, compared to the many years that can be required in the judicial process. Another advantage of arbitration is that, generally speaking, it is confidential. Parties favour this for two principal reasons. Firstly, they can have their dispute decided on the merits without “airing out their dirty laundry”. Secondly, in many cases, the parties wish to preserve their business relationship and having their dispute dealt with privately can avoid public embarrassment, with a result that the parties may be able to continue their business relationship once the dispute has been resolved. There are, naturally, always exceptions to this rule.
Q
Do laws and regulations differ for domestic companies as opposed to foreign companies?
Generally speaking, most laws of general application do not distinguish between domestic and foreign companies. Most Canadian jurisdictions have two types of arbitration legislation, domestic and international. The international legislation will apply where the arbitration is international (meaning that at least one of the parties to the arbitration is foreign) whereas the domestic arbitration legislation will apply otherwise. The implication is that, in Canada, there is less scope for judicial supervision under an international arbitration than in the case of a domestic arbitration. There are other special rules for situations involving foreign companies, for example, in situations where a foreign entity is seeking to effect the take-over of a Canadian company.
Q
How do you assist clients involved in arbitration? Is there any general advice you could offer clients to prevent the situation from escalating?
Michael Schafler
The most important and helpful advice to our clients is an honest and early assessment of their legal rights and obligations. Knowing the risk and exposure before the dispute escalates is essential. As soon as the dispute does escalate, we counsel our clients to utilize a number of procedures – short of arbitration – that could lead to early settlement. These procedures can involve high level executive discussions, unfacilitated mediations, facilitated mediations and neutral evaluations, to name just a few. We have also seen an increase in the use of settlement counsel; that is, counsel whose only role is to settle the dispute on behalf of their client rather than taking the case to a hearing.
77 King Street West, Suite 400, Toronto-Dominion Centre Toronto
M5K 0A1 Telephone
Work: 4168634457 Mobile: 6472994457
Email
michael.schafler@
fmc-law.com Website:
www.fmc-law.com/MikeSchafler
Q
Do you foresee the need for legislative change in 2012, if so why?
The rules of civil procedure in a number of Canadian provinces have recently been overhauled in a number of significant areas including with respect to more limited oral discovery rights, the introduction of the proportionality principle, increased judicial dispute resolution and new rules with respect to summary judgment procedures. Consequently, there does not appear to be any need for further reforms in 2012. With respect to commercial arbitrations in Canada, the rules are well established and, to the extent international organizations such as the ICC amend their rules from time to time, incremental reform is achieved in any event. LM
CONTACT:
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114