Law Times

PAGE 10 FOCUS Canadians more involved in the international arena A Dispute resolution and arbitration goes global BY HELEN BURNETT Law Times lawyers are becoming increasingly involved in international dispute resolution and arbitration, includ- ing trying to bring more of this work to major Canadian centres. Where disputes are interna- tional, different considerations have to be dealt with; for example, whether to litigate or to arbitrate, says Joel Richler, a partner with Blake Cassels and Graydon LLP, which is in the process of estab- lishing an international dispute resolution practice group of 10 to 12 lawyers across the country. If you arbitrate, for instance, s business becomes more international, so too do disputes. And Canadian you need to know what princi- ples are invoked. If you litigate, there may be problems with respect to recognition and en- forcement of judgments. "There's a whole different basket of considerations that you have to deal with, and that's be- coming more and more prevalent. International disputes are becom- ing more and more prevalent . . . with the increased prevalence of international commerce," he says, as well as more clients drawn from outside the country and business- es of domestic clients more inter- nationally focused as well. "An issue is international if the parties to it are based in different jurisdictions, so if there's a Cana- dian client versus an American- or European-based adverse party — or vice versa — the dispute is in- ternational," says Richler. The practice of international days. It's controversial, but there's lots of it." Six or so firms are active in the area as counsel, says Alvarez, and two or three are doing most of the cases, competing with large American and British internation- al firms. dispute resolution has only started to blossom in Canadian law firms in the last 10 years, says Henri Al- varez, co-chairman of the interna- tional law practice group at Fasken Martineau DuMoulin LLP and a member of the firm's nine-lawyer international dispute resolution group. Unofficially, the interna- tional dispute resolution group at his firm has been in existence as long as he has practised there, he says, and Alvarez has been doing primarily international arbitration for at least the last 12 years. International arbitration is likely the predominant means of binding dispute resolution, says Alvarez, apart from negotiation and settlement, as it gives you some predictability and keeps you out of the courts. A new area, known as investment arbitration, Trust [ 'The more demand we can cre- ate for doing work in Canada, the more the potential exists for having Canadian lawyers do the work,' says Joel Richler. has recently developed, he says, under bilateral or multilateral in- vestment treaties. He says that the practice group has seen claims under the bilateral investment treaty, or Chapter 11 of NAFTA, used to a significant extent. "That's one of the big boom areas in international dis- pute resolution practice these volved both as counsel, but there are a number of Canadians who sit as arbitrators in those cases and in commercial cases," he says. Blakes' new group will fo- cus on IDR, rather than just international arbitration, and the practice group is expected to get larger as it becomes more established, says Richler. "When you do more business internationally you have more disputes internationally, and we just thought that it made sense to have a group within the office that [is] focusing on those issues with some degree of specialization, as opposed to a more generalistic ap- proach," says Richler. In addition to the demand, "Canadian firms have been in- ple, we have a partner in Ottawa that does a lot of NAFTA work. That's totally international and that's going to become more prev- alent," he says. In terms of the differences, domestic arbitration tends to be the same as a trial, but in a private context, says Richler, where law- yers conduct themselves as they would in a courtroom, with less formality and greater efficiency, he says. International disputes tend to be much more efficient, he says, less tied to the rules of civil procedure, with less formal rules of evidence and more of a civil law perspective. In domestic arbitrations there APRIL 21, 2008 / LAW TIMES Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. the creation of the group is also a function of the experience the law- yers already have in this area, says Richler. "We have lawyers in the office who have been dealing with international cases. They acquire the certain level of expertise as a re- sult of their experience," he says. The 10 or so people involved in this work at the moment would probably spend about 40 to 60 per cent of their time dealing with cas- es that involve international issues, says Richler, which is a function of where the disputing parties are. "We expect that our commit- ments to international work will grow as these types of cases be- come more prevalent," he says. "The function of the group is really to ensure that, if a cli- ent has a problem that involves international aspects, that there are people within the firm that are readily able to deal with those problems because they know the area and they know the issues, and often clients won't know what the issues are," he says. The practice of having interna- is a greater ability to go to a court to control the arbitration process, he says, as courts are more proac- tive in domestic cases than they would be in international cases. However, international arbitra- tions have no rights of appeal, un- less you specifically provide for it before another international arbi- tration tribunal, says Richler. In an international context, it is Alan Farrer - Managing Partner | Desmond Dixon - Partner | David Neill - Partner For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. 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In the U.S., he says, there are firms with established specialty groups dealing with international dispute resolution, and while he says he is not sure how well estab- lished other practice groups are in other firms in Canada, many law- yers within litigation groups have international expertise. lawyers within the practice will be more involved with this type of work, but it will still not make up their entire practice. "One hundred per cent is probably a stretch, given the size of the Canadian economy and the size of Canadian law firms, but cer- tainly we'll see lawyers who are doing this with a greater degree of specialization," he says. "There's a growth area in terms of international trade. For exam- Richler says that, with time, Untitled-1 1 www.lawtimesnews.com 4/7/08 9:02:11 AM preferable to go to a forum where you have some say as to what the procedural rules will be and who will decide the case, says Alvarez. The fact that there is usually no appeal or a review of an award be- cause it was "wrong," only setting aside for basic fundamental errors of procedure or excess of jurisdic- tion, is an advantage of arbitra- tion, says Alvarez. "It's a far more predictable form of dispute resolution and generally subject to less review and more easily enforceable," he says. "From a business perspec- tive, it has lots to recommend." "When you look at domestic arbitration versus international, at a practical level you'll see that lawyers in domestic arbitrations tend to adopt court proceedings that they're familiar with, more so than in an international con- text, where you've got lawyers from different countries, so you have to have some level playing ground," says Richler. "The biggest reason that inter- national disputes are moving to arbitration, as opposed to litiga- tion, is that international arbitra- tion awards are much more easily enforced in different countries be- cause of the New York convention and the model law than the court judgments," he says. International disputes are be- coming more prevalent, says Alvar- ez, as business is more international and a lot of this type of legal work is around. More lawyers are trying to take this work on, he says, and as more and more parties get involved in arbitration, this may slow arbi- tration down, he says. Richler says the group would like to have international arbi- trations conducted in Canada. He notes arbitration lawyers in general are trying to develop Toronto as an attractive place to arbitrate. "To some degree, we've been successful; Toronto has been used for international cases," he says. "The more demand we can create for doing work in Canada, the more the potential exists for having Canadian lawyers do the work," he adds. LT

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