Law Times

Page 8 December 2, 2013 Law Times • Focus On ADR Arbitrators outline differences between ADR, litigation BY CHARLOTTE SANTRY Law Times I nternational arbitrator Janet Mills wasted no time in telling Canadian Bar Association conference attendees recently about the vast difference between her world and the litigation arena. "Everything you have been trained to do, throw it out the window," said Mills of Bay Street Chambers. "Take your robes and sit down." Speaking at an Oct. 3, 2013, event in downtown Toronto, Mills set out a number of ways in which lawyers need to adapt litigation techniques for international arbitration matters. First, lawyers must make sure they're effective advocates for clients from the issuance of their very first document. Unlike in the courts where the first judge encountered is unlikely to be present at the trial, arbitrators will be there throughout the processes. "So if you stumble and fall in an interlocutory motion, not a big deal," said Mills. "If you stumble and fall at the beginning of an arbitration, you can lay an unfortunate impression with your arbitrator that may take months to rehabilitate." Second, it's even more important on the international stage that lawyers plead their cases civilly and courteously. Lawyers who don't normally work on international arbitration cases also really need to learn the lexicon of the practice area, Mills suggests. "It's a bit of a closed playground and there are all sorts of expressions," she said. For example, there are many acronyms, as well as phrases such as "hot tubbing," which refers to the practice of different parties discussing issues civilly while sitting together in one room. "Make sure if you don't play in this playground or know the rules of this game intimately then make sure you've hired lawyers who do," Mills advises. Doug Harrison, a partner with Stikeman Elliott LLP's litigation practice in Toronto, provided tips for cross-examining witnesses at international arbitrations. "The legislation that governs arbitration is completely silent on whether 'The American style of scorched-earth litigation and going out of the room with your arms raised, that's not going to work in an international arbitration,' says Janet Mills. cross-examinations are going to be allowed to take place," he says. The model law merely emphasizes treating parties with equality and suggests each one should have the full opportunity to present its case. However, Ontario case law has determined there's no inherent right to crossexamine a witness during an arbitration matter. In the 2000 case of National Ballet of Canada v. Glasco, the issue at stake was whether a ballerina was to have a contract renewed. The National Ballet wanted to crossexamine Kimberly Glasco, the ballerina, but the arbitrator declined the request on the basis that it wouldn't assist his decision as there were no credibility issues and the arbitration agreement said it would be an expeditious hearing. The ballet challenged the decision at the Ontario Superior Court of Justice, but the court ruled there had been no denial of natural justice since the company could have filed its own affidavits to counteract Glasco's evidence but chose not to. The lesson, says Harrison, is "if you have any concern about whether or not cross-examinations are going to be allowed, make sure you reach agreement with the other side on the point." And if parties are going to submit affidavits, "perhaps agree in advance the arbitrator won't accept an affidavit unless there's an undertaking to produce a witness for cross-examination." Law school students often learn Irving Younger's 10 commandments for cross-examination. But there are a number of ways in which lawyers need to adapt them for international arbitration, according to Harrison. For example, the doctrine that lawyers must not ask any questions they don't know the answer to may not apply. That's because there may not have been any oral discovery of witnesses before the hearing, which means "you don't necessarily know what they will say," says Harrison. "You have to be a bit conservative in your approach," he adds. "Step gingerly, make sure you have escape routes if you start getting answers you don't like. Go into it with lower expectations than you might otherwise have." It may not be possible to ask as many leading questions as usual, and lawyers may have to temper the rule of not letting the witness explain anything. " tribunal won't let you cut someone off," A he says. "You can try but you can't say it's a hard-and-fast rule like in a litigation scenario." Some of Irving's rules become even more crucial in international arbitration. The need to be brief and limit the number of questions asked is important as there's strict adherence to the time allocated to hearings. Lawyers must not argue with witnesses and, if anything, should try to be more conservative and civil than they might be in a court situation, according to Mills. And using plain words is of utmost importance as there may be parties who don't speak English. An important point to remember, says Mills, is that arbitrators hail from a variety of different jurisdictions. "The American style of scorched-earth litigation and going out of the room with your arms raised, that's not going to work in an international arbitration. You will lose credibility doing that," she warns. However, in arbitrations presided over by three retired U.S. judges, lawyers can "go to town," she notes. The rules for expert witnesses also vary. For a start, they may not be necessary in some instances, such as reinsurance cases, where arbitrators must be retired reinsurance executives. Similarly, in disputes involving large building contracts, an arbitrator experienced in major oil and gas projects may not require an expert witness to go through the finer aspects of those industries. Unlike ordinary witnesses, experts must be available for cross-examination if any party requests it. Where expert witnesses are required, arbitrators may select them in a number of ways. Increasingly, says Mills, parties provide a list of expert witnesses they would find acceptable. If a name appears on both lists, the arbitrator will choose that person as someone who's likely to be neutral. The need for experts to avoid appearing to be a hired gun is vital in international arbitration matters, she stresses. "If you have a witness who's just the mouthpiece of the party, their evidence will quickly be discredited. . . . Subtlety is key." International Bar Association rules require experts to be independent and certify that they truly believe the evidence they're providing. LT CANADIAN LAW LIST 2013 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; Untitled-2 1 related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK www.lawtimesnews.com Prices subject to change without notice, to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation 13-10-22 7:47 AM

• Cover