Law Times

February 8, 2016

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Ruling favours strict approach to disclosure MICHAEL MCKIERNAN For Law Times I nternational arbitrators must boost their conf lict searches after a French court ruled a conf lict unknown to a Cana- dian arbitrator proved enough to render his award unenforceable, according to experts. In a Dec. 16 judgment that has set tongues wagging in the international arbitration community, France's Court of Cassation, the highest appeal court for civil cases in the country, upheld a lower court's decision to overturn an award by Fasken Martineau DuMoulin LLP partner Henri Alvarez in a dispute over a telephone cable company based in Guadeloupe. Earl Cherniak, a member ar- bitrator at Toronto's Arbitration Place, says he can "only sympa- thize" with Alvarez, who he de- scribes as "one of the most senior and respected arbitrators in the country." "He thought he had made a full disclosure, but it turned out he hadn't. Even though it could not have affected his judgment, be- cause he didn't know about it, the award was nevertheless held inval- id. It's a cautionary tale for the rest of us that arbitrators must not only be impartial but they must also be seen to be so," says Cherniak, also a senior partner in the Toronto of- fice of Lerners LLP. "Another court might have come to a different conclusion once they accepted he had no idea and said 'no harm, no foul,' but it's a judgment call." He says the stricter approach to disclosure taken by the French court creates additional problems for arbitrators based at larger law firms with multiple offices in dif- ferent cities and, in many cases, different countries around the world. "The search is going to have to be more intensive in those cases," Cherniak says. "The fact a disclo- sure is made at the start when the arbitrator is appointed is not the end of the matter. Disclosure ob- ligations are continuous, and an arbitrator needs to disclose any po- tential conf lict that comes to his or Harder for retired judges to return to court NEIL ETIENNE Law Times R etired Superior Court of Justice judges who want to return to court as counsel will now have to get permission from a Law Society of Upper Canada tribunal. The move is a bid to ensure the perception of fairness in the courtroom. Convocation made the policy amendments during its most recent meeting Jan. 28, includ- ing tweaks to the wording and judicial categories in the Law Society of Upper Canada's Rules of Professional Conduct. Before, former judges of the Superior Court of Justice could appear before the court as coun- sel after a three-year "cooling-off " period. Malcolm Mercer, chairman of the LSUC's professional regulation committee, said Associ- ate Chief Justice Frank Marrocco first broached concerns of public perception and access to jus- tice on behalf of the senior executive of the Supe- rior Court of Justice. He said former judges appearing as lawyers before their one-time peers of the bench has led to situations where the sitting judge will recuse himself or herself from a matter, slowing the wheels of justice. "Some judges have been recusing themselves, and we understand judges have given an indica- tion that they intend to recuse themselves in the future," said Mercer. "There is a concern about newer judges who hear submissions made to them by judges who CALL FOR INQUIRY Trial lawyers question expert evidence P2 PRIVACY RULING Large damages awarded in landmark case P5 FOCUS ON Legal Innovation P8 See Decision, page 3 PM #40762529 $5.00 • Vol. 27, No.5 February 8, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Follow LAW TIMES on See LSUC, page 3 Earl Cherniak says the stricter approach to disclosure by the French court creates issues for larger law firms. ARE YOU RECEIVING CANADIAN LEGAL NEWSWIRE? Keep abreast of essential late-breaking legal news and developments with our electronic newswire. VISIT OUR WEBSITE WWW.CANADIANLAWYERMAG.COM AND LOOK UNDER "LINKS" SIGN UP FOR FREE From the publisher of and CanLegalNW_LT_Feb1_16.indd 1 2016-01-27 3:21 PM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM Lee Akazaki says judges should not recuse themselves only because a former judge is due to appear before them because it lacks a principled reason. Photo: Robin Kuniski

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