MOOT MASTERY
The winning strategies
DOES EMERGENCY ARBITRATION HAVE A FUTURE?
HEALTHCARE: MEDIATION CAN MAKE AN IMPACT
AUTUMN 2017 CIARB.ORG
DON'T MISS THIS! International Conference, Paris PAGE 21
Required reading Learn the secrets of creating a compelling client narrative
Leader
CONTACTS
Chartered Institute of Arbitrators 12 Bloomsbury Square, London WC1A 2LP, UK T: +44 (0)20 7421 7444 E: info@ciarb.org W: ciarb.org Membership T: +44 (0)20 7421 7447 E: memberservices@ciarb.org PR and Communications Nikki Nang Nilar T: +44 (0)20 7421 7481 E: nnangnilar@ciarb.org Marketing T: +44 (0)20 7421 7481 E: marketing@ciarb.org Education and Training T: +44 (0)20 7421 7439 E: education@ciarb.org Events T: +44 (0)20 7421 7427 E: events@ciarb.org Venue and Facilities Giles Andrews T: +44 (0)20 7421 7423 E: gandrews@ciarb.org Governance and Legal Services Tom Cadman E: legal@ciarb.org Dispute Appointment Service Keisha Williams E: DAS@ciarb.org © THE RESOLVER is published on behalf of the Chartered Institute of Arbitrators (CIArb) by Think, 8th Floor, Capital House, 25 Chapel Street, London NW1 5DH +44 (0)20 3771 7200 thinkpublishing.co.uk
Editor Caitlin Mackesy Davies Sub-editors Kirsty Fortune, Sian Campbell Designer Felipe Perez Advertising Sales Tom Fountain tom.fountain@thinkpublishing.co.uk Group Account Director John Innes john.innes@thinkpublishing.co.uk This magazine aims to include a broad range of opinion and professional issues and articles do not necessarily reflect the views of CIArb nor should such opinions be relied upon as statements of fact. All rights reserved. This publication may not be reproduced, transmitted or stored in any print or electronic format, including but not limited to any online service, any database or any part of the internet, or in any other format in whole or in part in any media whatsoever, without the prior written permission of the publisher. While all due care is taken in writing and producing this magazine, neither CIArb nor Think accept any liability for the accuracy of the contents or any opinions expressed herein.
Aiming for impact
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The final months of my presidency will find me supporting international cooperation and ethical standards
dvancing towards the last few months of my presidential year fills me with satisfaction regarding our accomplishments as a CIArb community. Together, we brought life to our aspirations, and to the ideas and projects that we developed over the past year. The second in the series of flagship conferences of 2017 on ‘The Synergy and Divergence Between Common Law and Civil Law in International Arbitration’ was held in Johannesburg last July. Beyond the enrichment that the conference gave to us as international arbitration professionals, it also cemented CIArb’s role as a truly global institution well rooted on the African continent. At the close of the event, we also developed recommendations that, once implemented, should help improve arbitration proceedings and the development of safe seats for arbitration in Africa. The much-anticipated final conference of the year, which will be held in Paris and focuses on the same theme from the perspective of Europe and the Americas, will pull together all the lessons from the previous Dubai and Johannesburg conferences, with a view to building more general recommendations on how to create a synergy between common and civil legal traditions in international arbitration.
Dr Nayla Comair-Obeid with CIArb Director General Anthony Abrahams (left) and Deputy President James Bridgeman C.Arb at June’s RAC Reception
During the trimester to come, I will continue to support CIArb’s mission of enhancing ethical standards in ADR. Scheduled visits in Hong Kong and Nigeria will help us implement new projects on site, with a view to further developing the skills and knowledge necessary to ensure better access to justice. I will leave my time as President of CIArb with the conviction that the impact of our work will go beyond this year, and that CIArb will continue to play a leading and inspiring role as an institution that provides education and training and promotes ADR, notably through its wide network of members around the world and through strengthened bonds in an expanding network of branches. Professor Dr Nayla Comair-Obeid C.Arb President of CIArb
INSIDE THIS ISSUE
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THE OPENER Education updates, a look at ECJ alternatives, UAE Branch Chair Q&A and more
MOOT MASTERY
The winning strategies
DOES EMERGENCY ARBITRATION HAVE A FUTURE?
HEALTHCARE: MEDIATION CAN MAKE AN IMPACT
AUTUMN 2017 CIARB.ORG
11
OPINION Kenneth Cloke explains why every country needs healthcare mediation
DISCLAIMER: The contents of this publication are not intended to be a substitute for either general or specific legal advice on individual matters, and readers are strongly encouraged to seek competent legal advice.
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ANALYSIS What might the future hold for emergency arbitration?
Registered Charity No. 803725
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I NSIGHT How to be a master of the moot
DON'T MISS THIS! International Conference, Paris PAGE 21
Required reading Learn the secrets of creating a compelling client narrative
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IN DEPTH Learn how to create a compelling client narrative
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LAW Canada’s Supreme Court considered the arbitrator’s role in mixed decisions of fact and law
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CALENDAR CIArb training opportunities and featured events
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WORLD VIEW Find out why ADR is alive and well in Canada CIARB.ORG AUTUMN 2017 3
AUTUMN 2017
The opener BVI eases access
Symposium tackles how to add value and explores biases
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his year’s Mediation Symposium, held in September, explored the important contemporary themes of how mediation and mediators might add real value above and beyond conventional negotiation, and how understanding unconscious or cognitive biases and the developing world of neuroscience might enhance significantly what we do. A key element of the day included a conversation, led by Kenneth Cloke, Director of the Center for Dispute Resolution, about how our thinking and cognitive bias affect what mediators do – considering how mediators can add real value by applying knowledge of this subject to their day-to-day work. With thanks to our venue sponsor
The British Virgin Islands (BVI) International Arbitration Centre has announced that under the BVI’s new Labour Code (Work Permit Exemption) Order, people coming into the territory to participate in international arbitrations will be exempt from requiring a work permit. Those who are conducting, participating in (whether as legal counsel or representative of a party, or as a witness or expert witness), or providing support services for the conduct of arbitration or mediation will be exempt from having to seek a
ADJUDICATION
NEW IRELAND GUIDE AVAILABLE
The Construction Industry Council has produced a Users’ Guide to Adjudication: Ireland. The guide provides a general introduction to adjudication in the context of construction contracts and, in particular, the right to adjudication in Ireland. Free to download at cic.org.uk/publications
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work permit for a period of 60 days in the first instance, with extensions based on a request. The latter category includes arbitrators, mediators, legal counsel, parties, parties’ representatives, witnesses (whether at the request of one of the parties or summoned to appear), translators, stenographers, writers, interpreters, transcript writers, tribunal secretaries, tribunal and party nominated experts, representatives of arbitral institutions and other associated persons. Find out more at bviiac.org
KEEP YOUR CIARB BENEFITS COMING
CIArb subscription renewal notices will be on the way to members in December. Look out for yours and pay promptly to ensure you continue to enjoy the benefits of CIArb membership.
The opener
Coalition to drive diversity
OXFORD DIPLOMA COURSE GALA DINNER Pictured above are students of this year’s Diploma in International Commercial Arbitration at the Gala Dinner at Balliol College, University of Oxford, in August. The diploma course is designed to provide a thorough understanding of the law, practice and procedure of international commercial arbitration, and attracts candidates from a number of jurisdictions, including Australia, Bahrain, Brazil, Cyprus, England, India, Italy, Malaysia, the Netherlands, New Zealand, Nigeria, Qatar, Russia, Scotland and the US.
CIArb’s Young Members Group and Aspiring Solicitors, the largest legal diversity platform in the UK, are working together to increase diversity in the field of private dispute resolution. Members of both organisations will now benefit from shared networks, mentoring, networking opportunities and events, as well as CIArb’s educational and training resources. Members of Aspiring Solicitors will enjoy the benefits of CIArb student membership, while CIArb members will be able to support the group by becoming Professional Ambassadors, and sharing their knowledge and experience with the next generation of legal practitioners. The collaboration’s objective is to enhance access to the legal profession and the field of private dispute resolution for young lawyers from diverse backgrounds. It also aims to make the next generation of lawyers more employable and better able to meet the needs of their clients by providing them with practical skills and increasing their knowledge of private dispute resolution.
POLICY
What are the ECJ alternatives?
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he Secretary of State for Exiting the European Union, David Davis, has mooted the creation of an arbitration body to act as an alternative to the European Court of Justice (ECJ) for future trade disputes, and increasingly making clear that this is a red line. So what are the possible options for a joint UK-EU arbitration panel and potential sticking points? Chris Wilford, CIArb Head of Policy, Public Affairs and Research, offers this summary. 1. The International Court of Justice (ICJ). But it is only open to states, so the EU could not use it. 2. The Permanent Court of Arbitration, but the ECJ would have to agree to be bound by an ad-hoc arbitral tribunal. 3. The World Trade Organization (WTO) Appellate Body, to which the
EU and all member states are party. The Appellate Body’s jurisdiction would have to be amended and this would require modification of the WTO treaties (alongside the renegotiation on which both the UK and EU will be embarking). 4. The European Court of Human Rights (ECHR). However, the EU is not party to it and the clear rejection of a possible accession of the EU to the ECHR by the Court of Justice of the European Union (CJEU) illustrated that it does not wish to be bound by the rulings of the ECHR. This is also politically difficult in the UK, although a minority government may face difficulty with centrist rebels on leaving the ECHR and Labour remains in favour. 5. The Court of Justice of the European Free Trade Association States (EFTA court). This supranational judicial body, responsible for the David Davis
three EFTA members which are also members of the European Economic Area (Iceland, Liechtenstein and Norway), has the advantage of covering non-EU member states, while having some links with the EU. The EFTA court is essentially the only international court that the CJEU has accepted. From a UK perspective, this could be acceptable, as could a division of the EFTA court focused on Brexit matters. No matter which solution gains currency, it is certain that arbitration will once again take centre stage as a focal point for both the parties involved and wider civil society. CIArb looks forward to continuing to work with the member community and partners beyond as policymakers strive to develop a dispute settlement system that works for everyone. For details of CIArb’s work to inform policymakers, see www.ciarb.org/policy CIARB.ORG AUTUMN 2017 5
The opener MEDIATION
60-SECOND INTERVIEW
Leonora Riesenburg FCIArb
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fter a two-year term as Branch Honorary Secretary, Leonora Riesenburg has become the youngest Chair of the United Arab Emirates (UAE) Branch and the first woman to assume the role. Can you tell us a little about your ADR background? An international arbitrator and Accredited Commercial Mediator, I live and work in Dubai and have practised in the UAE for more than a decade. I’ve acted in numerous arbitrations and mediations (both domestically and abroad) as a party neutral, party-appointed representative and advocate. CIArb members in the UAE will no doubt know me through my previous Branch role and attendance at Branch events, as well as my involvement in the Module 4 International Award Writing and Peer Interviews over the years. What does it mean to you to be Chair of the UAE Branch? As someone committed to the Institute and to continuing the outstanding work of the Branch, it is a tremendous privilege to sit at the helm of the fourth-largest Branch. It is my pleasure to serve, not least alongside a
seasoned and accomplished committee whose commitment to the work of CIArb is nothing short of admirable. What do you most hope to accomplish over the coming months? This year, we are delighted to introduce a new Pathways programme, with the roll-out of the Branch’s first ever Commercial Mediation Accreditation programme. Other initiatives under development include the Stranded Fellows course, which will make an excellent addition to our offering. I hope that members who have been asking for more networking opportunities are already enjoying a fun-packed season, which so far has included a Members’ Summer Special Network Evening attended by more than 60 people. We also look forward to the Dubai Arbitration Week, which is about to commence as this issue of The Resolver publishes. Is there anything you’d particularly like to say to Branch members? Thank you for your invaluable support and generous contributions over the years. We hope to see more members join us at future events! For information on CIArb in the UAE, go to ciarb.org/branches
NY marks fifth year To kick off its fifth anniversary, the New York Branch of CIArb held its Annual Fall Reception on 2 October, hosted by Alston & Bird LLP. The reception is the latest in an unprecedented year of events. In June, in conjunction with Columbia Law School, the Branch held its annual International Arbitration course. Participants from across the globe attended a week of learning and networking, followed the next week by an Accelerated Route to Fellowship course.
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International arbitration teacher: George Bermann FCIArb in NYC
Apology accepted Following two rounds of consultation, on 13 July 2017 apology legislation was enacted in Hong Kong, aiming to facilitate dispute resolution – making Hong Kong the first country in Asia to do so. The legislation applies to all civil disputes subject to arbitration, litigation, administrative proceedings or disciplinary and regulatory proceedings. It does not compel anyone to make an apology, but it facilitates amicable dispute resolution where the parties want to resolve the matter in this way. The definition of apology is broad, covering both partial and full apologies.
Class of 2017 continued Congratulations to the latest CIArb Fellows awarded C.Arb status: • Prof Georges Affaki (Europe) • Mr Richard Ayodele Akintunde (Nigeria) • Mr Jacques Darche (Canada) • Mr Richard Mattiaccio (New York) • Mr Olumide Sofowora (Nigeria) • Prof Janet Walker (Canada)
CIArb MALAYSIA
Education initiatives A record 51 candidates took part in the Module 4 Award Writing course, which included a tutorial with guest speaker Teresa Cheng GBS SC JP FICE, a Senior Counsel, C.Eng, C.Arb and Accredited Mediator, at The Majestic Hotel Kuala Lumpur. It culminated with examinations in Singapore, South Korea, London, India, Australia and Malaysia. The Malaysian Branch was also the first branch in the Asia Pacific region to introduce the online assessment for the Introduction to International Arbitration in May.
The opener EDUCATION AND TRAINING
Make way for modules Delivery of new courses is just one of our recent initiatives CIArb LONDON
Med-arb: sweet or sour? In July, the London Branch presented its 14th Annual Mediation Seminar, hosted by Clyde & Co LLP, entitled ‘Med-Arb/ Arb-Med: A sweet mix or toxic fusion?’ Branch Chair Irvinder Bakshi C.Arb first highlighted the similarities between mediation and arbitration, then considered differences between them and potential difficulties that may arise at different stages of each process. Simon Nesbitt QC FCIArb then addressed the potential advantages to be gained in terms of speed of resolution and finality, and Jasbir Dhillon QC talked about challenges to an arbitral award, or its enforcement, that may arise when such an award is made by a medarbitrator. Providing an overview of the position in various jurisdictions, Dhillon noted that enforceability will depend on the particular facts and the court in which enforcement is sought. Above (left to right): Simon Nesbitt QC, Neil Newman, Irvinder Bakshi, Jasbir Dhillon QC and Jon Turnbull
Virgin outing Michael Hawkyard FCIArb, Chair of the North West UK Branch, recently informed The Resolver of his achievement in completing the Virgin Money London Marathon in April and raising nearly £2,500 for an orphanage that shelters some 26 children in Uganda. He says it was “the toughest thing, mentally and physically” he has ever done, and thanks all those who generously contributed to his cause.
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From September, CIArb started to deliver the first Modules 1 for Arbitration (International and Domestic) and Construction Adjudication under the new Training Pathways programme, following the efforts of the Regional Pathways Leaders and Approved Faculty. The first Centralised Assessments for those modules are scheduled to take place in December. A new Assessment Faculty has been appointed to set assessment papers and provide model answers, to moderate those papers and model answers, and to mark and quality assure candidates’ scripts. Centralised Assessment will ensure that there is absolute consistency and fairness in the assessment process for all candidates across the world, ensuring a global standard. Candidates will need to register and pay for examinations separately. Phase two of the roll-out has also started in the Asia Pacific region (East Asia, Australia, Singapore, Malaysia and Thailand).
Words of welcome
The continuing programme will be led by CIArb’s new Head of Education and Training, Daniel Okin, who joined the Institute on 1 August. We also welcome Natalie Greenidge-Baston and Tolu Fakoya as Education Officers. They joined the department over the summer and will be working with Nicole Cooper, Pascale Temple and Karen Cheel on our Pathways courses, diplomas and new CPD courses.
Online assessment We successfully launched the online
assessment for all five Introduction courses in January 2017, with a deadline of 1 July 2017 for all branches to be using this assessment. The assessment consists of 60 multiple-choice questions with instructions on how to take the test, together with a short practice test, included in the guidance. The practice test can be taken as many times as candidates need. They have up to 28 days from the end of the course to take the assessment, and will have up to three attempts to take and pass the assessment (the pass mark is 55%). From 1 July 2017, candidates who have not taken and passed the online assessment for an Introduction course will not be eligible for Associate Membership grade. Please ensure that you have included this in your planning for Introduction courses.
Important reminder
The modules on the existing pathway will run until the end of 2018. If you are interested in completing the pathway to Fellowship, please secure a place in 2018 at your earliest convenience as spaces are in high demand. Candidates who are on the existing pathway and wish to register after 2019 will need to start on the new pathway with the new modules.
Pathways webinar
A series of free online webinars around the transition of the Pathways are planned, at which a member of Education and Training team will be on hand to answer any questions you may have about the changes. Check ciarb.org for confirmed dates and times. Head of Education and Training Daniel Okin
Sponsored feature
How to be cyber sensible Kieron Sharp, CEO at FACT, offers his view of today’s cybersecurity threats and how to beat them CIArb: How would you characterise the cybersecurity environment for business today? Kieron Sharp: The cyber threat to UK business is significant and growing. In the summer of 2017 alone, UK businesses suffered some 188 serious highlevel attacks and numerous lower-level ones. What are the primary, or most dangerous, methods criminals are using to infiltrate systems? A ransomware attack (during which an attacker encrypts the data on the hard disk, preventing the user from accessing it until a ransom is paid) is one of the most common and effective methods used to attack businesses. These exploit the weakest links of any organisation: its employees. This is reinforcing the importance of educating staff, and encouraging them to adopt best practice in handling emails in both their personal and professional lives. What measures are companies taking to protect themselves from cybercrime? And are these adequate? Most companies use virus and malware protection software, but we advise our Security Certification clients that this is only as effective as the last known outbreak. The most effective form of protection is to educate staff and ensure that all machines are up to date with security patches.
Where confidentiality is crucial to a business, what is the most important action that it needs to take? Emails sent over the internet are usually transferred in plain text, so anyone with the right tools can read them. However, most email clients – for example, Office 365 – allow encrypted email to be sent, which maintains confidentiality. When sending large amounts of data, be sure to use password protection and encrypt the files.
What is the largest challenge that has been brought to you at FACT over the past year? Or the most devastating for the business concerned? What lessons were learned? The Petya ransomware attack devastated a business before it became FACT Security Certified, effectively disabling that company’s entire computer network. This large company had to revert to using paper communication for some three months while it slowly replaced its IT infrastructure. Among the lessons learned, I would mention in particular: l educate employees on current security issues; l refresh that staff training regularly; and l effectively manage outsourced business functions – don’t assume outsourcing companies have everything covered.
ON TWITTER
Follow FACT @FACTUK
What is the biggest challenge in fighting cybercrime now and that you foresee in the future? Mobile devices seem to be becoming more of a target and even Apple products are being attacked. We always provide tailored recommendations to our clients, but this common advice applies to every business: the most underestimated and overlooked issue is protection afforded to mobile devices including smartphones and tablets. These devices will often allow direct access to your company network with little control. For information on how FACT can help protect your business, email contact@fact-uk.org.uk or visit fact-uk.org.uk
Fast FACTs What can ADR practitioners do to ensure that their IT systems are secure? 1. Use only supported operating systems (e.g. Windows XP is now marked as end-of-life) 2. Always keep up to date with patches and updates. 3. If an email looks too good to be true, it usually is. 4. Don’t reuse work passwords at home. 5. Encourage staff to ask for credentials from people they don’t know in the workplace.
CIARB.ORG AUTUMN 2017 9
Opinion
F
Every country needs healthcare mediation Kenneth Cloke suggests that ‘do no harm’ could have a wider remit
or those who followed the Charlie Gard crisis in the UK, and the attacks on the Affordable Healthcare Act (‘Obamacare’) in the US or similar healthcare conflicts in other countries, the levels of emotional outrage, upset and apparent intractability around the related debates have been obvious – and, perhaps to many, appalling and unnecessary. Illness and injury intimate death and, as a result, elicit intense emotions — not only among patients and family members, but also healthcare professionals and those who work in the organisations responsible for saving lives. At the same time, few patients, family members, doctors, nurses, hospital staff and administrators are well equipped to deal with these intense emotions, or are adequately trained in empathetic communication, problem solving, collaborative negotiation, consensus building, mediation, systems design and other conflict-resolution skills. Healthcare facilities experience chronic conflicts that can directly impact the quality of care. They undermine teamwork and morale, increase resistance to improvements, raise costs, waste time and occupy the conscious and unconscious attention of everyone involved. This creates additional burdens on a system already groaning under the weight of reduced resources and highly stressful work. Conflicts can occur between doctors, nurses, staff, administrators, patients and families, and flow not from substantive disagreements over medical goals, but disrespectful communication. This might be the result of cultural differences, divergent personalities or personal styles, misuse of language, emotional issues or insensitivity, lack of skill in responding to abrasive or manipulative behaviours, or disappointments and unmet expectations. As such, most of this conflict is preventable, manageable and resolvable.
ABOUT THE AUTHOR Kenneth Cloke is a mediator and author based in Santa Monica, California, US, and Director of the Center for Dispute Resolution.
LEARN MORE
Cloke recently appeared at the CIArb Mediation Symposium 2017, addressing cognitive biases and how mediators can apply developing knowledge of them. For information, see ciarb.org
It is possible to imagine extending the injunction ‘do no harm’ to cover not just medical interventions, but how healthcare conflicts are handled. For example, in the Charlie Gard case, a mediator might have asked each side to tell the other why it felt so passionately about these issues, or why it cared about him, or what it most wanted to hear from the other, or what it thought could have been done better. Perhaps what people learned from the conflict might prevent other children from experiencing the same issues, or point to what could be done to give Charlie’s death meaning. They might, for example, agree to create and contribute to a fund in his name to educate healthcare professionals in ways of responding more skilfully to the issues his predicament raised. Over the past 37 years, I have mediated thousands of disputes, including many concerning wrongful death, medical
malpractice, patient care, hospital operations, management of healthcare organisations, doctor-patient communications, doctor-nurse and nursenurse disputes, intensive care issues, nursing home conflicts, cultural differences regarding treatment and similar topics. What has become clear to me as a result is that conflict resolution can play a crucial role in every country – not only in responding to the intense emotions and entrenched positions that occur in healthcare disputes, but in managing stress, reducing the costs of healthcare, designing preventative systems and – most importantly – helping people heal physically, emotionally, relationally and socially from the traumas caused by disease and chronic conflict. By doing so, step by step, person by person, conflict by conflict, we make the world a little better than it was before. CIARB.ORG AUTUMN 2017 11
Analysis
EMERGENCY ARBITRATION What’s the future?
Ben Giaretta C.Arb considers five crucial questions facing arbitration’s vehicle for urgent action
E
mergency arbitration has been around for more than a decade. In 2006, the American Arbitration Association (AAA) was the first institution to introduce it into its rules as a mandatory component rather than an opt-in arrangement and many other institutions have followed suit over the subsequent years. Yet, despite this option being widely accepted into the arbitration fold, questions have arisen about how it can best operate – and how it might be improved. This article considers the five main areas that have provoked discussion and debate. 1. ARE AWARDS ACTUALLY ENFORCEABLE?I The most commonly cited reason for parties to express reluctance to begin emergency arbitration is that it is often not clear how an emergency arbitration award can be enforced. Being an interim decision, an emergency arbitration award does not easily fit within the scope of the New York Convention – even if the relevant jurisdiction allows enforcement of a tribunal’s interim measures, it is not immediately clear that an emergency arbitrator should be equated with a tribunal. Some jurisdictions have already addressed this. For example, Singapore and Hong Kong have changed their procedural laws to allow for enforcement of emergency arbitration awards. Yet other jurisdictions have shied away from the issue when revising their laws. India, which made changes last year, and South Africa, which amended its law this year, are recent examples – perhaps concluding that the availability of interim measures from the local courts in support of arbitration is sufficient. The result of this lack of harmony is that parties are left in doubt whether emergency arbitration is worthwhile. A common standard that countries can follow – via a revision of the UNCITRAL Model Law on International Commercial Arbitration allowing for the enforcement of emergency arbitration awards – would be useful here. 2. IS AN EMERGENCY ARBITRATOR REALLYI AN ARBITRATOR?I The second question is related to the first. It is not clear whether an emergency arbitrator is to be equated with the tribunal and this can affect the enforcement of an emergency arbitration award. In addition, uncertainty over the status of an emergency arbitrator may bring into doubt whether other provisions in procedural laws apply, such as
whether an emergency arbitrator benefits from statutory immunity and whether the jurisdiction of an emergency arbitrator can be challenged through the courts. This makes the system of emergency arbitration vulnerable to disruption as a result of applications to local courts, or at least because the fear of such applications undermines confidence in the system. Again, a clarification via a revision of the UNCITRAL Model Law might be useful in quelling these fears. 3. SHOULD NOTICE OF THE INITIAL APPLICATIONI BE GIVEN TO THE OTHER SIDE?I Under the majority of institutional rules containing emergency arbitration provisions, emergency arbitration is conducted on the basis that the application is made on notice to the other side, and the emergency arbitrator must involve both sides in all communications. This reflects the principle in international arbitration that an arbitrator must have no ex parte engagement with either side: this might also be the reason why to date there has been a low take-up of Article 17B of the 2006 revision of the UNCITRAL Model Law, which allows an ex parte application to a tribunal for interim measures. Nonetheless, there are some good reasons why an ex parte application might be useful in emergency arbitration. Emergency arbitration is, by definition, considered in urgent circumstances; circumstances in which it may not be appropriate to inform the respondent in advance that an interim measure is on the cards (so that, for example, the respondent will not move its assets out of reach). Allowing an ex parte application might even be to the benefit of a respondent, as it will then not have to deal with an emergency arbitration application made without any warning, which can put it at a disadvantage. A change to allow ex parte applications might even be said to be a reflection, to some extent, of existing practice: emergency arbitrators sometimes make preliminary orders to maintain the status quo early in the
The most difficult question to answer is whether emergency arbitration should be maintained or discarded as a good idea that has failed to take off CIARB.ORG AUTUMN 2017 13
Analysis
ABOUT THE AUTHOR Ben Giaretta C.Arb is a Partner at Ashurst LLP.
emergency arbitration process, at a time when the respondent has barely had time to consider the application. The Swiss Rules have recognised this by allowing applications for preliminary orders to be made ex parte (that provision also applies to emergency arbitration under the Swiss Rules). There is a debate to be had here, but there is at least something to be said for permitting ex parte applications in emergency arbitration. Further, the institutions might be the gatekeepers who decide whether an application can start on an ex parte basis (with a subsequent return date for full arguments from both sides) or whether it must be inter partes from the start. 4. WHAT TEST SHOULD BE APPLIED?I For the most part, emergency arbitration rules do not specify what test the emergency arbitrator should apply. This leaves it open to the emergency arbitrator to follow a standard that is appropriate to the particular case. On the other hand, in a process that is run to a very tight timetable, there is considerable merit in all participants knowing from the outset what they have to do and what the applicant has to show. Also, in the author’s own experience, and from details of emergency arbitrations that are on the public record – such as the summaries of emergency arbitrations that are published periodically by the Stockholm Chamber of Commerce (SCC) – there have been moves towards a common standard, drawing in particular on Article 17A of the 2006 revision of the UNCITRAL Model Law. This involves a requirement for the claimant to show: that it has an arguable case on the merits; that interim relief is needed to avoid greater harm at a later stage (if it succeeds in the arbitration); and that the claimant’s need outweighs the potential detrimental impact of the interim measure on the respondent. The Australian Centre for International Commercial Arbitration has specified this test in its rules relating to emergency arbitration; other institutions could do so, too.
LEARN MORE
CIArb’s Practice Guideline on Interim Measures includes information on emergency arbitration. See bit.ly/Interim Measures. See also our Abitration Rules at bit.ly/ CIArb_Rules
5. SHOULD EMERGENCY ARBITRATION BE ABANDONED?I The most difficult question to answer is whether emergency arbitration should be maintained or whether – like the antecedent pre-arbitral referee procedure in the International Chamber of Commerce (ICC) Rules – it should be discarded as a good idea that has failed to take off. Emergency arbitration has a mixed record. It is clearly a successful addition to some rules: the Singapore International Arbitration Centre (SIAC) reports ever-increasing numbers and, in a region where effective court-ordered interim measures are available in only a few countries, it is plainly filling a gap. However, other institutions – even the London Court of International Arbitration and the ICC – have had few emergency arbitrations relative to their
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The tipping point may come if the UNCITRAL Model Law is revised. And such amendments might even be the catalyst of a much bigger change overall case numbers and some, it appears, have had none at all. This might come as no surprise. The adoption of emergency arbitration by institutions has seemed to be motivated more by the need to maintain parity in the competition between institutions for prestige and reputation (in the same way that countries vie to appear ‘arbitration-friendly’) than a desire to meet a real demand from users. The lack of support for emergency arbitration within the statutory framework might lead one to think that the introduction of emergency arbitration was a triumph of hope over experience, with institutions trusting that some way might be found in the future to make the system effective rather than proceeding on a sure footing from the start. Notably, the Vienna International Arbitration Centre has stood apart from the fray, rejecting the idea of incorporating emergency arbitration into its rules because of the question mark over the enforcement of awards and the availability of interim measures in support of arbitration from national courts. There might be a risk for some institutions in maintaining a system that is barely (or not at all) used, since criticism of emergency arbitration might affect broader attitudes towards arbitration. In particular, if there is any resentment from users that have incurred costs on emergency arbitration, but have little to show for it in terms of an enforceable emergency arbitration award, they may turn away from arbitration as a whole. This might lead some institutions to remove emergency arbitration from their rules. But, plainly, emergency arbitration will continue to be usefully operated by some institutions, such as the SIAC and the SCC, and that may discourage other institutions from abandoning it, while more countries may follow the lead of Singapore and Hong Kong, moulding their laws to fit the system. The tipping point may come if the UNCITRAL Model Law is revised, as suggested above. And such amendments might even be the catalyst for a much bigger change: a general acceptance of international arbitration as a self-contained system, including its own interim measures prior to the appointment of the tribunal, and even, perhaps, a revision of the New York Convention to reflect that new reality.
Insight
HOW TO...
Be the master of the moot
Amanda Lee FCIArb offers her winning strategies for mooting competitions
ENTER WITH ENTHUSIASM Begin your preparation by selecting a dedicated team of enthusiastic participants. Then plan each stage of the competition: read the rules carefully to understand requirements and deadlines, budget properly, secure sufficient financial resources and seek supporters to provide feedback on oral submission rehearsals. MAKE YOUR MEMORIAL MEMORABLE The written memorial stage requires a significant investment of time and energy, so allocate enough time for research, drafting and reviewing. Look at winning memorials from earlier competitions (if available) to gain an insight into what works well. Allocate tasks relating to different areas of the problem to different team members. Remember that you are seeking to persuade the reader of the merits of the case that you are presenting. A stand-out memorial will contain well-structured arguments and a clear and strong conclusion, but keep it short and simple. Cite appropriate and relevant authorities accurately – and proofread! STORY AND STRUCTURE Oral submissions should tell a compelling story. A logical structure is key – use signposting, and clear introductions and conclusions. Rehearse your speeches against the clock, leaving enough time for questions from the tribunal. Oralists must know the record perfectly and work as a team. Preparation should include stress management techniques to promote confidence and calmness when competing, such as power posing or the 4-7-8 breathing technique.
PRACTISE, PRACTISE, PRACTISE Begin your advocacy practice from day one – in the shower, on the bus, before brushing your teeth. Ten minutes of practice twice a day over several months can make an enormous difference. Practise as much as possible, but try to avoid sounding overrehearsed or robotic.
ABOUT THE AUTHOR Amanda Lee FCIArb is Chair of the CIArb YMG and a consultant at Seymours. The author would like to thank Harald Sippel FCIArb of Yulchon for his assistance. Sippel has trained moot court teams for many years.
GET LIVE EXPERIENCE Seize any opportunity to practise before a live tribunal, whether at a formal pre-moot or otherwise. Listen carefully to the feedback given and take it on board to improve your performance. Learn from your opponents and ask yourself what worked and what did not. EXPECT THE UNEXPECTED Once the oral rounds begin, your hard work will be tested by a live tribunal. You may feel fully prepared, but arbitrators from different legal traditions and backgrounds will ask different types of questions. Listen carefully to each question and pay attention to what interests the tribunal. Keep your answers clear and straightforward. Use the facts and the relevant law. Stay calm even if you make a mistake. Speak slowly and clearly. Be respectful and polite at all times. HAVE THE LAST WORD Take advantage of the opportunity for rebuttal. Observe the tribunal while your opponent is speaking to identify areas of interest. Limit your responses: make points only if you have something positive to say or to undo damage inflicted by your opponent. Always leave the tribunal with a positive final impression.
LEARN MORE
Harald Sippel is the author of forthcoming book Mooting to Win: How to Succeed at International Moot Court Competitions (due in 2018). Go to mootingto-win.com for details.
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In depth
Follow the leader STORYTELLING ADR professionals can best serve clients by working with them to build a compelling, effective narrative. We spoke to a selection of members about how and why Words by CAITLIN MACKESY DAVIES
O
n 8 June, former US FBI Director James Comey faced the global spotlight and tough questions on the subject of his testimony on Russian interest in the 2016 US presidential election. Despite the intrigue surrounding the circumstances of Comey’s appearance, it was what Congressman James E Risch of Idaho said at the beginning of his questioning that may have most caught the attention of DC-based international arbitration specialist Charles Kotuby Jr FCIArb. Risch said of Comey’s seven-page statement: “I read it, and then I read it again, and all I could think was: number one, how much I hated the class of legal writing when I was in law school, and you are the guy that probably got the A … I find it clear. I find it concise … this is as good as it gets, and I really appreciate that.” Kotuby, a firm believer in the power of sharp, focused and compelling legal writing, believes that it is also “the most important tool in investment arbitration” and that arbitrators who don’t do all they can to hone it are doing a disservice to their clients. Ultimately, arbitrators and tribunals are human, he says, and “they really appreciate sitting down and reading a good story – even before they get into what law was broken.” 16 AUTUMN 2017 CIARB.ORG
Kotuby continues: “Some advocates put forward hundreds of pages of documents and effectively say: ‘Dear arbitrators, you figure it out’.” This is a mistake, he adds, as arbitrators appreciate a roadmap to lead them through a case. And it’s not as if there isn’t great material to work with. “Investment arbitrations always involve fantastical stories, sometimes decadeslong political intrigue, or investment operations in frontier or emerging markets. The stories are incredibly rich,” he says. SHORT STORIES That’s not to say the story you tell needs to be lengthy. Kotuby is of the view that “if you can’t state your case in 50 pages, you don’t have a case to state”. He developed his own talents in brevity from a decade spent as an appellate lawyer in the US, when he clerked for the Court of Appeals. There, he had no more than 50 pages in which to present a very complex case and only 15 minutes to state a case in front of the court. The experience taught him to work overarching themes into a crisp narrative, and having transitioned this skill into international arbitration, he has found that arbitrators like it. He acknowledges, however, that not everybody comes from this background and that there is a cultural component to people’s writing and narrative style, and
differences in the needs of tribunals. For example, he says: “Common law arbitrators tend to be more apt to hear the whole story and make decisions based upon the case and the narrative writ large. Continental civil lawyers tend to be more tied to legalities and not as much swayed by an overarching narrative.” So, he advises, “you have to pick your tribunal and know which ones are going to be more receptive to your particular style”. It’s not an entirely one-way street, though. He believes arbitrators can help by asking counsel for briefing on particular points only, or for a 20-page distillation of the facts, for instance. Admittedly, the danger is that imposing page limits may eventually be fodder for launching a denial of due process attack when it comes time to enforce an award. Another obstacle to brevity can be the clients themselves, who may want every detail included; clients who have intricate stories to tell and can see the process as a cathartic exercise. It may also be, Kotuby reflects, that the advocates winning cases are the ones who are “putting in the kitchen sink”. However, he feels that separating the wheat from the chaff, and winning cases with leaner briefs and more compelling narratives will be the quickest way to get the attention of the bar.
In depth SPOKEN WORDS Independent arbitrator and long-time trainer in oral advocacy Jean Kalicki FCIArb agrees with Kotuby on the importance of bearing in mind the audience’s needs. By the time you get to an oral hearing, she says, what an advocate must do is synthesise an enormous amount of material for the tribunal and help it focus on what is most important. This is the opportunity for counsel to cross-examine witnesses and experts, so that testimony needs to be put into the context of a broader story. Where it differs from written advocacy is the narrative structure. You don’t save your best for last, building your case piece by piece, she says. Instead, start with a short, clear statement that offers the conclusion you are urging the panel to adopt. Follow that up with a sentence or two that summarises why that conclusion is warranted, so that the tribunal has – in those first few minutes – the crux of your argument. Then back up and explain your various points. A powerful beginning plays a crucial role for two reasons. First, it will capture the audience’s attention when they are at their most alert. Second, you want to get across your key take-away points, because you may run out of time. Kalicki points out that most arbitrations feature a ‘hot bench’ – an interactive audience that peppers counsel with questions and to which counsel has to be able to respond. You may not get back to your script, she warns, “and there is nothing worse than having a powerful conclusion you never get to deliver – or that you deliver at the end of a three-hour opening statement when the tribunal is thinking about lunch”. The development of clear thematic threads is vital in overcoming complexity for Kalicki, who cites jury and broader psychological studies into active listening and memory. These indicate that what people remember from a complex argument are the portions connected to just a couple of key themes. So, she
THE STORY SO FAR
What our experts suggest to create a compelling arbitration narrative... • Written submissions should be clear and have a rhythm • Separate the wheat from the chaff; don’t throw in the kitchen sink • In oral presentations, voice modulation can help keep listeners interested and alert • Practise your script so that you can maintain eye contact with arbitrators • Use chronologies, playbills and PowerPoint to help arbitrators grasp key facts and players • Keep your story in line with provable facts – don’t oversell or overstate • Develop clear themes and weave them through your narrative
says, advocates should identify a theme in their introduction, then weave it throughout the longer explanation of facts and law, return to it a few times and then once again in a conclusion. This kind of repetition helps fix a point in the audience’s memory. Keep to simple themes that can be summarised in a sentence or two, and not too many, she advises. Any dispute should be able to be summarised in an ‘elevator speech’. “You should be capable of saying: ‘I have this neat case, it’s about x and y. I think my client wins for the following reasons’. If you can’t boil it down, you haven’t thought it through enough.”
KOTUBY’S TOP TIP: MAKE IT SNAPPY “A federal judge I worked for used to say: ‘It’s not unconstitutional to be interesting’,” says Charles Kotuby FCIArb. “But that doesn’t mean cracking jokes in the brief. Instead, use clean topic sentences, and write with flow and rhythm. I try to write Hemingway not Faulkner, so it becomes a page-turner – a snappy, rhythmic, entertaining story.” 18 AUTUMN 2017 CIARB.ORG
Once you are in front of arbitrators, a variety of techniques and tools can help you get your story out most successfully. Among these, Kalicki highlights: Language choice Many advocates will refer to their client as the claimant or respondent, rather than using their name or presenting them as a real person or entity facing real-world problems, which is more effective. Also avoid filler language such as ‘we submit’ or ‘it is our position that’, which reminds arbitrators that counsel is a hired gun setting forth a position. Kalicki says: “Take yourself out of the equation. And present your conclusion as if it is just the right answer. Instead of saying: ‘We submit that the sun rises in the east’, just say: ‘The sun rises in the east’.” Roadmaps Use flow charts to give the tribunal a sequence of steps to follow in its
so voice modulation is really important. Vocal emphasis, rise and fall, and dramatic pauses can all be useful here. Audience focus Be attentive and know your points well enough that you can maintain eye contact, which will help you engage the audience and sustain them. It will also give you cues about when they look bored or tired. Practise your argument so many times that you can look up frequently throughout your presentation. Kalicki says the worst thing an advocate can do is to undermine its credibility. Once an advocate mischaracterises a document or misleads the tribunal about a sequence of events, it is difficult for the tribunal to trust anything else it may say. For instance, advocates often think it will be compelling to demonise the other side or party by accusing it of bad faith. But unless you really have the goods, says Kalicki (and it is rare that you do), that type of argument can really boomerang. Remember, too, she concludes, that advocates can be as moderate and balanced as they wish, then find that their star witness takes the stand and makes outrageous claims, resulting in the case falling apart. So advocates need to make sure their clients stick to the facts they know to be true and can support. deliberations, and tell it what the key evidence and law is for each one. A chronology can also help arbitrators understand the sequence of events. A ‘playbill’ – listing key players, providing a few sentences to identify them and even a photo – can be very effective in personalising witnesses. PowerPoint pitfall Beware of abusing PowerPoint by simply reading off the screen. The result will be that arbitrators tune you out and flip ahead. PowerPoint should assist the oral advocacy: show the key language from an exhibit, draw attention to a key exhibit, show a snippet of your chronology and so on. It can be important if used correctly, but can undermine advocacy if done wrongly. Use your voice The bestwritten script in the world will lose the attention of the audience if it is delivered in a monotone,
A MEDIATOR’S TALE “In a sense, the whole mediation experience is an exercise in telling stories, as how each of us sees things is filtered through the prism of our perceptions – creating a reality for us that may be different for others,” says seasoned mediator John Sturrock QC MCIArb. “There are stories that parties tell about themselves or about others, either directly to do with the situation or as metaphors. There are stories told by mediators about themselves and their past experiences, or as observations about similar or other situations. Each has a role to play.” Having previously been a barrister, Sturrock is in a perfect position to outline the fundamental difference between use of story in mediation and in arbitration: “As an advocate, my life was all about communicating apparently compelling stories – creating an event of my choosing in the mind of the audience, in order to persuade that audience. In mediation, we
Vocal emphasis, rise and fall, and dramatic pauses can all be useful may not only be seeking to influence, but to engage, empathise, normalise and understand. And one of our main jobs may be to help others in mediation to communicate their compelling story to others in ways that help to change things, create momentum, build bridges and promote real understanding.” In the mediation process, every narrative will be circumstantial and will arise in the context of the presenting facts. However, mediation cannot be characterised simply by reference to a subject area or the documents produced, explains Sturrock. He says that each mediation addresses a dispute or difference that is the product of human engagement or disengagement, and of all the cognitive biases and emotions that are part and parcel of life, along with analyses of risk and reward, perceptions of strength and weakness, hopes and fears, and so on. While some professional commentators have argued that engaging with a party’s story anchors the mediation process in the past rather than looking to the future, Sturrock says that depends on the case. “The story from the past may be a window into the future – it all depends on how it is used and the skill of the mediator in utilising the learning from it,” he says. His advice to those wanting to improve their use of narrative is: “Be careful, listen, seek to understand, don’t judge, don’t make assumptions, show respect.” And, while building an effective narrative can be a two-way process – sharing something from his own life experience can be a key to helping a party face up to challenges and change approach, says Sturrock – he echoes Jean Kalicki’s advice to take yourself out of the equation. Building a useful story must be “wholly motivated by assisting the other and it must be shaped in such a way that it meets their needs at the time. And always presented with humility and as an observation or offer of a reflection.” CIARB.ORG AUTUMN 2017 19
Law
Case note Teal Cedar Products Ltd v British Columbia 2017 SCC 32 Report by Russell Q Gregory BA LLB ACIArb, Gregory Law Office, Saskatchewan, Canada
BACKGROUND Teal Cedar Products Ltd (T) held a licence to harvest timber on Crown lands in the Canadian province of British Columbia (BC). A dispute arose after the province reduced the volume of timber that T was allowed. T and BC disagreed on the valuation of compensation owed to T. The parties submitted the dispute to an arbitrator in accordance with the Forestry Revitalization Act (the Act). The arbitrator was required to make a statutory interpretation of the proper valuation method for improvements that had been made. The arbitrator selected the depreciated replacement cost as the method of valuation. Following an appeal, the application judge upheld the arbitrator’s decision except in regards to the statutory interpretation, which was remitted back to the arbitrator and resulted in an increased award in an amount equal to the value of the improvement. The arbitration was conducted pursuant to the Arbitration Act, which provided: “31(1) a party to an arbitration ... may appeal on any question of law.” The BC Court of Appeal (BCCA) reversed the application judge’s decision, finding errors on both the statutory and contractual interpretation issues. DECISION The Supreme Court of Canada (SCC) overturned the BCCA decision, and pointed out that the standard of review depended on the characterisation of the question as legal, factual or mixed fact/law. The case of statutory interpretation of the Act on the category of valuation method involved questions, regarding: a) the categories of methods under the Act; and b) which specific method should be applied. 20 AUTUMN 2017 CIARB.ORG
The court found the former to be a question of law, which the courts have jurisdiction to review on appeal pursuant to the Arbitration Act. The latter question involved detailed evidentiary considerations, so was a mixed question and beyond appellate review. The standard of review of a matter of law from a commercial arbitration was ‘reasonableness’, and a decision that is supportable and understandable is reasonable. To appeal a decision, one must show it was unjustified, nontransparent, unintelligible or indefensible. The BCCA improperly used the standard of correctness rather than reasonableness. The court noted that counsel can be motivated to frame a mixed issue as a legal question, stating that: “A narrow scope for extricable questions of law is consistent with finality in commercial arbitration and, more broadly, with deference to factual findings.” The court held that it only had jurisdiction to review the categories of
methods (a question of law) and not the mixed question of which specific method to apply. Accordingly, the SCC overturned the BCCA on the valuation and upheld the arbitrator’s decision. On the contractual interpretation, the SCC took an objective approach, concluding that: “The arbitrator, after a lengthy and complex hearing, was best suited to weigh the factual matrix in his interpretation of the ... agreement.” COMMENT The result of the case is to reaffirm the deference to an arbitrator on mixed decisions of fact and law. The courts must assess clearly the question on appeal as one of law, fact or mixed fact/law, and not interfere with arbitral awards where there is no basis for appellate review. In addition, the framing of the issue by the appellant must be critically viewed by the courts. The full case report is at bit.ly/TealvBC
Calendar
What’s on Selected events and training opportunities for CIArb members
DON’T MISS THIS
CIARB TRAINING NOV 2017 – APR 2018 (Location is London unless specified) KEY l Alternative Dispute Resolution (ADR) l Mediation l Construction Adjudication l Domestic Arbitration l International Arbitration l Centralised Assessment
7–8 December, Paris Marriott Champs-Élysées Hotel, 70 Avenue des Champs-Élysées, Paris, France CIArb’s third and final international conference this year will see delegates discuss ‘The Synergy and Divergence between Civil Law and Common Law in International Arbitration’ from both European and US angles. The two-day conference will showcase lectures and panel discussions led by experts from across the world. The event provides an incredible opportunity to engage with specialists within the dispute resolution field, network with other members of the ADR community and forge new business relationships. Cost: £500 members; £300 YMG members; £540 non-members. Payment in euro accepted Register at: bit.ly/Book_Paris FORWARD PLANNER 21 March 2018 Joint afternoon event with the Chartered Institute of Building, Arcadis, London 5 April 2018 Arbitration in Banking and Finance Deconstructed: The New Deal, CIArb, London Full details at www.ciarb.org/events
l Accelerated Route to Membership 28–29 Nov £1,320
ADR Online Open entry £36
l Introduction to
Arbitration 26 Apr £396
l Introduction to ADR Online Open entry £95
l Introduction to ADR
l Module 1 Law
l Introduction to ADR 15 Feb £95
l Introduction to
CIArb International Arbitration Conference
l Module 2 Law of Obligations 4 months. Start: 19 Feb £1,320
Mediation 28 Feb £396
Practice and Procedure of Domestic Arbitration 3 months. Start: 3 Apr £1,320
l Module 1
l Module 2
14 Nov; 15 Feb £480; £396
l Introduction to
Mediation 6–10 Nov £2,400
l Module 1
Training & Assessment 6–13 Mar £3,960
l Module 2 Mediation 13 Nov £1,560 l Module 2 Mediation
Law of Obligations* 4 months. Start: 19 Feb £1,320
l Module 3 Mediation Theory and Practice 6 months. Open entry £660 l Module 1 Law Practice and Procedure of Adjudication 3 months. Start: 3 Apr £1,320 l Module 2 Law of Obligations 4 months. Start: 19 Feb £1,320
Law of Obligations 4 months. Start: 19 Feb £1,320
l Accelerated Route to Membership 28–29 Nov £1,320
l Introduction to Mediation 28 Feb £95 l Introduction to Arbitration 26 Apr £95 l Introduction to International Arbitration 1 Mar £95
l Family Arbitration
(Children’s Scheme) 3–4 Feb £1,920
l Module 1 Mediation Assessment** 13 Mar £1,560
l Introduction to International Arbitration 1 Mar £396
*Same as Module 2 under the other ADR Pathways
l Module 1 Law Practice and Procedure of International Arbitration 3 months. Start: 3 Apr £1,320
**Assessment fee included in course fee unless candidates are taking the assessment only.
FIND OUT MORE Professional training: www.ciarb.org/courses Branch courses: www.ciarb.org/trainingand-development Education team: T +44 (0)20 7421 7439 F +44(0)20 7404 4023 E education@ciarb.org
CIARB.ORG AUTUMN 2017 21
WORLD VIEW
TORONTO New chapter proposed A proposal to form the Alberta Chapter of the Canada Branch has been submitted. This new chapter will join the three other chapters already established in Canada – British Columbia, Montreal/Ottawa and Toronto – and will significantly expand CIArb’s presence in Western Canada.
Contribution recognised At its Annual Fall Symposium in Toronto in September (on the topic of ‘Domestic and International Arbitration in Canada: What’s Happened and What’s Next?’), keynote speaker Thomas G Heintzman OC QC FCIArb received the Canada Branch Award for Distinguished Service in Arbitration in Canada.
CIArb in Canada The Canada Branch currently has 230 members and has just held its first Accelerated Route to Fellowship course in Vancouver. Learn more about the branch, future networking and training opportunities, and sign up for Branch newsletters, at ciarbcanada.org
The establishment of CIArb’s Canada Branch sees it join a vibrant group of arbitration organisations
Dr Paul A Tichauer FCIArb
Ontario a more attractive jurisdiction for resolving cross-border disputes.
ADR is alive and well!
I
Canadian arbitrators are active internationally and at home ABOUT THE AUTHOR Dr Paul A Tichauer FCIArb is an independent arbitrator and Chair of CIArb’s Canada Branch. The author thanks Tom Heintzman, Daniel Urbas and Janet Walker for their input to this overview.
t’s safe to say that arbitration is very much alive and well in Canada. Across the country, Canadians are actively involved in both domestic and international commercial arbitration, and the establishment of the Chartered Institute of Arbitrators’ Canada Branch on 1 July (the 150th anniversary of the formation of Canada in 1867) sees it join a vibrant group of arbitration organisations, including the ADR Institute of Canada, the ICC Canada Arbitration Committee, the Toronto Commercial Arbitration Society and the Western Canada Commercial Arbitration Society. A number of important events and rulings have shaped the Canadian arbitration landscape over the past year, of which there are a few highlights to mention. In December 2016, the Uniform Law Conference of Canada published a new Uniform Arbitration Act (the ‘2016 UAA’). The purpose of the 2016 UAA is to harmonise the laws of the provinces and territories of Canada, and where appropriate the federal laws as well. The up-to-date 2006 UNCITRAL Model Law was adopted in the province of Ontario in the spring of 2017 as part of the International Commercial Arbitration Act (ICAA) 2017. The new Act also expressly adopts the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The stated purpose of ICAA 2017 is to make
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This summer saw the Supreme Court of Canada, in Teal Cedar Products Ltd v British Columbia, elaborate on and reaffirm its 2014 decision in Sattva Capital Corp v Creston Moly Corp, which held that the interpretation of a contract is normally a matter of mixed fact and law and therefore not appealable if the arbitration statute allows an appeal on a question of law. See a report of this case on page 20 of this issue. Reasserting the Québec courts’ full support of arbitration, the Québec Superior Court, in Greenkey Ltd v Trovac Industries Ltd 2017 QCCS 3270 (CanLII), upheld the arbitral award conducted under the Canadian Commercial Arbitration Centre rules. The tribunal concurred with Judge Marie-Anne Paquette in Government of The Dominican Republic v Geci Española, who wrote: “Courts have no jurisdiction to hear disputes covered by an arbitration agreement. They also cannot enquire into the merits of a dispute which was arbitrated and must not engage in a retrial of the dispute. On a motion to homologate or to annul an arbitration award, the analysis of the court must be limited to the key prerequisites to the homologation or annulment of an arbitration award, which are enumerated in article 646 of the Code of Civil Procedure.” For full details go to bit.ly/Greenkey
Calgary, Alberta, may soon have its own CIArb Chapter