Law Times

PAGE 4 NEWS January 16, 2012 • Law Times BY JULIUS MELNITZER For Law Times aspect of dispute resolution risk management, lawyers argue. "Corporate counsel outside M Canada seem to pay more atten- tion to arbitration, have a greater recognition of its importance and of how to use it more effec- tively to the advantage of their clients," says Barry Leon, who leads Ottawa-based Perley-Rob- ertson Hill & McDougall LLP's international arbitration group. Geoff Creighton, senior vice president and general counsel at IGM Financial Inc., says Leon is probably right. He notes there are a number of reasons for the lack of attention. "Arbitration has a much higher any Canadian corpo- rate counsel are paying insufficient attention to arbitration as an profile in the U.S. and the U.K. and there are more in- stances where arbi- tration is prescribed as the mandatory dispute resolution mechanism," says Creighton. "The Canadian market is also less litigious and in- house counsel here probably don't do as much worrying about the fighting that may come at the back end, partly because the market is smaller, everyone has to live with each other, and what goes around comes around." Andrea Laing of Osler Hoskin & Harcourt LLP points to the ubiquity of jury trials in the Unit- ed States as one factor behind the greater awareness of arbitration. Arbitration has a higher pro- file in Britain and the United States, says Geoff Creighton. "In-house coun- sel in the U.S. have a real concern of the quality of deci- sion-making that comes out of jury trials," says Laing. "That causes a lot of American com- panies to rush to arbitration." At the same time, a paucity of first-rate arbitra- tors means that get- ting to a hearing can take as long as get- ting court time, she adds. "It's not always the case that arbitrations are quicker and cheaper than liti- gation when you're talking about complex, high dollar-value cases." Indeed, arbitral institutions around the world are moving to deal with widespread criticism of the process by tweaking their rules with expediency and efficiency in mind. For example, on Jan. 1, 2012, the International Chamber of Commerce, whose Internation- al Court of Arbitration is the most popular forum for the arbitration of large and complex disputes, in- troduced important changes deal- ing with case management and consolidation, the appointment of emergency arbitrators to deal with interim relief, limits on submis- sions and argument, and provi- sions to encourage settlement. But while arbitration has come under some criticism re- cently (see "Arbitration becomes more like litigation," Law Times, Oct. 10, 2011), Leon maintains that in-house counsel in Canada can do more to ensure that the process proceeds expeditiously. "One of arbitration's most impor- tant advantages is in the flexibil- ity of the process," he says. "In-house lawyers don't step in oſten enough and question whether or to what extent an ar- bitration needs to be conducted like court litigation, where law- yers worry about leaving any stone unturned." In-house lawyers also need to pay more attention to inserting appropriate dispute resolution clauses in international agree- ments, he adds. "It's at the very outset when the contract is drawn that in-house counsel have an op- portunity to negotiate and design an efficient arbitration process. They also need to have a better understanding of the fact that en- forcing an arbitration award inter- nationally is relatively easy com- pared to enforcing a judgment." For his part, Leon has a top 12 list of the ways in which he feels Canadian corporate counsel oſten miss the arbitration mark: • They don't have an adequate understanding of issues and strategies for arbitration clauses. • They don't think about dispute resolution provisions early enough in a transaction. • They don't recognize that inter- national arbitration oſten is the only realistic option. • They don't recognize the im- portance of negotiating, draſt- ing, and concluding dispute resolution mechanisms that fit the business situation; are as effective as possible from their client's perspective; and are concise, workable, efficient, and comprehensive. • They may not be aware of in- vestment treaty protections. • They don't appreciate that just because Canadian courts do things in a certain way, the rest of the world does things differently. • They don't get sufficiently in- volved with outside counsel's handling of the matter and case strategy. BRIDGE THE GAP • They don't appreciate that international arbitration is a specialty. GET THE FULL PICTURE OF THE LAW WITH WESTLAW® CANADA INTELLIGENT FINDING TOOLS Leave nothing to chance with finding tools that ensure you never miss a case on point. Westlaw Canada gives you finding tools that work as smart as you do. Decades of editorially created classifications combined with powerful technology ensure that you never miss a case on point. No matter which search option you choose, you'll always find exactly what you need using fewer steps. Get Better Results Faster with Westlaw Canada Call 1-866-609-5811 or visit www.westlawcanada.com • They think they need to engage arbitration counsel who are lo- cated at the seat of the arbitra- tion or have been admitted to practice in the same jurisdic- tion as the law of the contract. • They think they need to retain arbitration counsel located in a major arbitral centre such as New York, London, England, or Paris. These lawyers may have little knowledge of the industry, the expectations of Canadian businesses, the com- pany, and its importance in Canada. Foreign counsel also tend to be more expensive. • They often believe that ar- bitration is costly and time- consuming. • They assume that arbitrators are more likely than the courts to lean towards an award that reflects a form of compromise and be unwilling to make tough decisions. LT www.lawtimesnews.com Are in-house counsel ignoring arbitration? Rules, legal culture among reasons for lower popularity in Canada

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