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

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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

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