Law Times

PAGE 2 NEWS OctOber 27, 2008 • Law times industry expert Howard Rosen. But, lawyers need preparation for differ- ences in the new regime. Rosen is managing director of LECG Canada, which provides expert opinion reports here's a trend towards international arbitration over litigation and Cana- dian players are in high demand, says International arbitration demands Canuck expertise T BY JEFFREY H. WAUGH Law Times and testimony for various matters, includ- ing valuation of business enterprises and damages. He recently spoke at the Alternate Dispute Resolution Institute of Canada an- nual conference in Montreal, as part of a panel discussing differences in investor-state arbitration versus domestic litigation. "As litigation has become more expen- sive, more complex, and less certain, and also because companies don't just do work locally anymore, there are disputes that Tribulations haven't dampened her spirit Continued from page 1 wich order) cannot be used to defeat the express provisions of the Access to Information Act," he wrote. Coady also submitted that as the Fed- But Martineau rejected that argu- ment as well. "An Anton Pillar order (or a Nor- eral Court had jurisdiction over matters of judicial misconduct investigated by the CJC, it was the appropriate court in which to seek the release of evidence. But that argument failed as well. "Even if I accept that this court is competent to hear an application for judicial review of the negative deci- sion rendered by the Canadian Judicial Council dismissing the applicant's com- plaint against former justice Chadwick, such an application has never been served and filed," Martineau noted. "The applicant is now out of time to do so and will need a judge's authoriza- tion to serve and file the same." Alternatively, Coady sought a Nor- wich order, a third party pre-discovery mechanism by which a third party is compelled to provide an applicant with information where the applicant be- lieves she has been wronged and needs the third party's assistance to determine the circumstances of the wrongdoing in order to pursue legal remedies. Here, Coady failed when Martineau of Appeal refused Coady's application for leave to appeal a decision dismissing her motion to introduce fresh evidence. "In these circumstances, the applicant has simply failed to satisfy this court that there is both a strong prima facie case for an Anton Piller order or a bona fide claim for a Norwich order," Martineau wrote. But Coady, who represents herself, is not done yet and has appealed Martineau's order — and by all accounts, she's not to be taken lightly. One senior lawyer who has been her adversary calls her "a very, very smart person" and "an excellent researcher who is always there with the right cases." What's clear is that her trials and trib- ulations haven't dampened her spirit. "My practice has been ruined, my name blackened, and everything I've ever had financially is gone, but in the end what's going to come out is that I've been telling the truth all along," she says. concluded that there was no bona fide claim for a Norwich order. He observed that on June 10, the hearing panel ruled that Coady was estopped from raising issues relating to the RCMP investigation, and pre- cluded her from calling as witnesses RCMP officers involved in that inves- tigation absent a motion to establish the relevance of the investigation. As well, on July 7, the Ontario Court LT occur between companies and other companies in other parts of the world, or be- tween companies and countries in other parts of the world," says Rosen. "Because of this, alternative dispute resolution is something that you'll see more and more of, locally in- side Canada and also internationally." Along with the preference for arbitration at an international level, Rosen's seeing a trend of companies wanting Canadian representation. "Canadians are in high demand because of their strong English, independence, and their well-developed professional standard which is noticeably less aggressive and adversarial than their U.S. counterparts, something that these tribunals don't take well to," he says. The LECG team's exposure to interna- tional matters illustrates this demand. He says his office spends about 50 per cent of its time providing expert opinions on international matters, and Rosen is even more involved. "Because Canadians are so well trained, and because our profession is so well viewed internationally, probably three quarters of my personal work this year was spent outside of North America on these types of cases." Getting to international arbitration can happen in different ways, he says, depending on whom the parties to the dispute are. Com- mercial issues between individual parties nor- mally involve stipulating the forum of dispute settlement in the commercial agreement. "If you're doing business somewhere else in the world, let's say Romania, you don't know much about the Romanian system or Romanian courts," says Rosen, so the arbitra- tion preference would be clearly stated before beginning any sort of business dealing. Disputes between investors and individual countries also arise, in which case there's usu- ally a bilateral investment treaty in place dic- tating the standards to which parties will be held and the method of dispute resolution. Typically, the bilateral investment treaty will refer disputes to the International Center for Settlement of Investment Disputes, says Ros- en, which is essentially international arbitra- tion. "And the difference for lawyers is very distinct, and the difference for experts is very distinct," he adds, making the comparison to the domestic setting. Canadian lawyers and experts may be in high demand, but they need to know what obstacles to prepare for. Rosen says the new Foundation for International Arbitration Advocacy is aimed at filling that goal. LECG has been retained by the FIAA to prepare training materials for expert witnesses and international arbitration lawyers to better equip them for these variations. An upcoming workshop in Lausanne, Switzerland, will train practi- tioners on how to make best use of experts in the international arbitration setting. The first difference lawyers will notice is the lack of an examination-in-chief for ex- perts. "In international arbitration, my re- port is my examination-in-chief," says Rosen. "And the tribunal is expected to have read all of the materials." A direct examination will be conducted, but Rosen says its purpose is simply to in- troduce new material since the report was prepared, and only lasts about five minutes. Cross-examination under this forum is much more focused, and less confronta- tional than the North American style, says Rosen, which helps to compress the time it takes for the hearing and fits well with the Canadian culture. "It's more of an inquiry and trying to get to an answer that makes sense, as opposed to trying to discredit a par- ticular expert or a particular fact witness." One of the most difficult obstacles faced in the hearings, says Rosen, is the lack of a discovery period. The hearing operates under a disclosure regime, where parties offer the in- formation they intend to rely on. But disclo- sure is not compulsory. "You cannot compel parties to produce documents," says Rosen, although the tribunal may make an adverse inference based on the non-disclosure. His main role in international arbitra- tion matters is providing expert opinion on valuations of damages to a business en- terprise. He says many cases end up giving back the initial value of the investment, but some tribunals are delving deeper into the potential growth that could have oc- curred if not for the intervening factor. It's essentially a "but for" analysis, although determining unrealized values can be com- plicated if the government is unwilling to provide certain documentation. LT Shock expressed over judge's resignation Continued from page 1 on the TRC, it's also up to inter- pretation whether all three would have shouldered equal responsibil- ity for its results. Assembly of First Nations National Chief Phil Fon- taine said during an August speech at the Canadian Bar Association's annual conference in Quebec City that it was up to LaForme as chair- man of the commission "to ensure that people will actually come forward to participate in the truth and reconciliation commission." TRC commissioner Claudette Dumont-Smith, the former se- nior health advisor to the Native Women's Association of Canada, says she was shocked to learn of LaForme's resignation. to resign, because he could have done the job and he had my respect and he chose to resign and that really saddened me," says Dumont-Smith, who is joined by British Columbia lawyer Jane Morley as a TRC commissioner. "I find that it reflects on what composed of three commission- ers, and three commissioners make up the commission. There's a chair and two commissioners." Dumont-Smith says she met we're supposed to be doing. We're a truth and reconciliation commission." Dumont-Smith says she was "I was sad too that he chose "flabbergasted" by LaForme's comments regarding the com- missioners' view of his role. "I think what he means, is that he was focusing on the de- cision making, and for me de- cision making, I'm aboriginal and I believe in consensus for decisions. And I think he had a different idea," she says. She says her view of how the commission is to be gov- erned is that "the commission is LaForme six or seven times, and she thought "we were in sync." She says the judge left a meet- ing with the commissioners on Aug. 26, citing illness. He later went on a "medically supervised schedule," says Dumont-Smith, adding the commissioners were then to contact LaForme via his legal counsel. But she says that system of communication con- tinued beyond LaForme's period of medical supervision. Dumont-Smith says she last saw LaForme at a Sept. 3 introductory mediation session that was set up with Lenczner Slaght Royce Smith Griffin LLP lawyer Will McDowell to bring the three parties together on their differences. "We didn't really go beyond that, which I think is unfortu- nate because I think if we would have all aired out issues that maybe were bothering one or the other, we would have come to a resolution," she says. Dumont-Smith denied sug- gestions from LaForme, made during a CBC Radio appearance before his resignation, of politi- cal interference in the commis- sion's work from the Assembly of First Nations. She said the AFN "is not to be viewed as an oppo- nent" to the commission, and it had a hand in its creation. Law Times' request for an inter- view with Fontaine was declined. Congress of Aboriginal Peoples National Chief Patrick Brazeau says a full airing of LaForme's resignation must come out be- fore the commission can get back to healing the wounds left by residential schools. "In the final analysis, a lot of importance has to be given to ex- actly getting the facts before us so we can assess what went wrong, how we can deal with it in order to move forward," says Brazeau. "Those who are suggesting that we just have to name a re- placement as quickly as possible without knowing the truth I think is the wrong way to go. I think it's hypocritical, and I don't think it's very accountable." A spokesman for Strahl said the courts are reviewing the resig- nation, and the minister is await- ing a decision before moving forward with the commission. LT WHICH DIRECTION IS BEST FOR YOU? 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