Law Times

Page 10 February 9, 2015 • Law Times www.lawtimesnews.com FOCUS How do global arbitration bodies compare? A look at the various organizations competing for Canadian business By Julius Melnitzer For Law Times he three major inter- national arbitration institutions that are fiercely competitive with the courts are also, as it turns out, in just as much com- petition among themselves. "There is a significant amount of competition among the International Court of Ar- bitration of the International Chamber of Commerce, the International Dispute Resolu- tion Centre of the American Ar- bitration Association, and the London Court of International Arbitration," says Barry Leon of Ottawa's Perley-Robertson Hill & McDougall LLP, a lawyer who's about to move to the Ca- ribbean to serve as a judge. "And one of the things they compete on are their rules of procedure, which are related to the process and the speed and the cost." Like law firms, arbitration institutions want to be innova- tive in order to satisfy corporate counsel who seek efficiency and cost-effectiveness. "Each of the institutions is looking for ways to get out of the gate first," says Leon. The International Dispute Resolution Centre, for example, followed Israel's lead by creating an arbitration appeal panel and has led the way in customizing products for different industries. "But if those who aren't first out of the gate see anything in- novative out there, they tend to copy it," says Leon. In 2012, the International Chamber of Commerce released updated arbitration rules that represented the most significant changes ever to its procedures. More than two years later, the International Dispute Resolution Centre produced its own major revisions with the London Court of International Arbitration fol- lowing in October 2014. While all three sets of interna- tional arbitration rules contain many similar provisions, there are differences both in their innovations and some of their traditional rules, including the deemed start date for an arbitra- tion; the default deadline for a response; the default number of arbitrators; the default appoint- ment of arbitrators; the default restrictions on arbitrators where the parties are of different na- tionalities; the time limits for challenging arbitration; joinder; consolidation; the tribunal's dis- cretion to order interim mea- sures; confidentiality; the time limit for issuing awards; expe- dited and summary procedures; availability of an emergency arbi- trator; and cost allocation among the parties. "Overall, the ICC is known for its heavy dose of quality control and its efficient processing of is- sues at the front end," says Leon. "On the other hand, there is some variation in the quality of the arbitrators on the ICC list." As far as fees go, the Inter- national Dispute Resolution Centre posts hourly rates for its arbitrators while the Interna- tional Chamber of Commerce provides a fee range with the fi- nal determination based on the efficiency of the arbitration as determined by the International Court of Arbitration. "Generally speaking, the IDRC is relatively inexpensive while the ICC is relatively ex- pensive," says Joel Richler of Blake Cassels & Graydon LLP's Toronto office. In 2013, the International Chamber of Commerce, facing a shrinking percentage of cases from North America, opened a New York office to serve the Ca- nadian and U.S. international arbitration markets. For its part, the Internation- al Dispute Resolution Centre, which with the London Court of International Arbitration is the institute of choice for the Canadian business communi- ty's international arbitrations, has taken aim at the Canadian domestic arbitration market. Opportunity abounds because Canadian business is unusual in its tendency to resort to ad hoc arbitrations. "The reason we have so much ad hoc domestic arbitration is because of the relative immatu- rity of the Canadian system as opposed to the U.S. and Euro- pean system," says Richler. On the whole, the rules of the international institutions aren't a good fit with domestic arbitra- tions. On Jan. 1, however, rules developed by the International Dispute Resolution Centre for domestic arbitrations in Canada went into effect. "IDRC wants to be the institute of choice for do- mestic arbitration in Canada," says Richler. "They are trying to compete with the ADR In- stitute of Canada, which is the only other similar organization to which Canadians can resort." While many lawyers and cli- ents prefer ad hoc arbitration because they believe the institu- tions aren't doing enough to drive down cost and delay, Richler says there are distinct disadvantages to proceeding on that basis. "I find that there are signifi- cant inefficiencies built into the process if you have to start it by agreeing on a set of rules rather than having a set of rules in place," he says. "Otherwise, there's no gov- erning body to approach if the arbitrator is not doing his or her job efficiently or quickly enough." LT NEW EDITION 2014/2015 Lexpert® CCCA/ACCJE CORPORATE COUNSEL DIRECTORY AND YEARBOOK 13 TH EDITION ORDER YOUR COPY TODAY! Visit www.carswell.com or call 1-800-387-5162 WHERE GREAT BUSINESS LAW OPPORTUNITIES AWAIT Market your services I Find others I Build valuable connections Published in conjunction with the Canadian Corporate Counsel Association and sponsored by Canadian Lawyer InHouse, the 2014/2015 Lexpert® CCCA/ACCJE Corporate Counsel Directory and Yearbook, 13 th edition gives you access to listings of approximately 4,300 Corporate Counsel across Canada, the companies they represent, and it affords you the opportunities to grow your business by building connections. 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Price(s) subject to change without notice and subject to applicable taxes. 00227AP-A47925 New Chapter – "Winds of Change"– discusses proposals for the modernization of the Canadian military justice system T There are distinct disadvantages to ad hoc arbitrations, says Joel Richler.

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