International Arbitration Should Continue To Grow As It Did In 2006

Originally published in The Lawyers Weekly, February 9, 2007.

The momentum from the considerable attention focused on international arbitration in Canada in 2006 is continuing in 2007.

Canada hosted two major international conferences in mid-2006 that highlighted the arbitration world’s focus on Canada: the 17th Congress of the International Council for Commercial Arbitration (ICCA), in Montreal, and the International Law Association’s 72nd Biennial Conference, ILA 2006, in Toronto (which had a significant arbitration component). Both conferences were terrific successes.

Added to this unprecedented international arbitration programming in Canada were a London Court of International Commercial Arbitration (LCIA) Symposium and a Young Arbitration Practitioners (YAP) event that drew young practitioners from around the world to Montreal.

These conferences gave Canada the opportunity to reinforce Canada’s strengths in international arbitration: the impressive body of Canadian arbitrators; talented arbitration counsel with advocacy skills well-suited to international arbitration; and the benefits that Canada offers as a place for international arbitration.

With the significant growth in both international and domestic commercial arbitration, it’s now common to hear Canadian litigation counsel say that they are involved in arbitrations, whereas that was rare not so long ago. Canadian transactional lawyers are also now more commonly including arbitration clauses in their contracts, laying the foundation for the continuing growth of arbitration to resolve business disputes.

Canadian businesses, and their lawyers, are becoming increasingly conscious of the role that commercial arbitration can serve in resolving business disputes in timely and cost-effective ways.

Late in 2006, Canada signed the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which has been signed by 156 countries and ratified by 143. Canada’s absence from the convention has been a concern for those interested in protections for international investors. Canada’s ratification of the convention, which it is hoped will occur soon (the needed provincial/territorial concurrence is not complete), will provide full access to the World Bank-sponsored International Centre for the Settlement of Investment Disputes. ICSID provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. ICSID contracting states are required to recognize and enforce ICSID arbitral awards.

Canada signed a bilateral investment treaty with Peru in November, bringing the number of Canada’s bilateral investment treaties to 22. Even so, Canada has considerably fewer investment treaties than many of its trading partners.

Canada continues to pursue bilateral investment treaties with countries in which Canadians are active investors, including India and China.

Leading arbitral institutions, in particular the American Arbitration Association’s International Center for Dispute Resolution (ICDR) and the ICC International Court of Arbitration, have recognized the opportunities that Canada, its business community and its arbitration practitioners offer, and these institutions are expanding their presence here. In addition to the presence of the major arbitral institutions at the ICCA Congress, the ICC and ICDR, with their senior leadership, were prominent at ILA 2006 and are likely to be involved in significant program initiatives in Canada in 2007.

The Canadian National Committee of the ICC has become a committee of the Canadian Chamber of Commerce, thus strengthening ties with the Canadian business community. The ICDR has a Canadian Advisory Committee, and its panel of distinguished neutrals includes Canadian members. The LCIA will have two Canadians on its North American Users Council (Henri Alvarez and John Judge).

Over the past few years, Canadian law school arbitration mooting teams have demonstrated terrific advocacy strength in the Willem C. Vis International Commercial Arbitration Moot in Vienna. In 2006, among the 156 universities from 49 countries that competed were five Canadian law schools. After Ottawa and Osgoode competed in the round of 16, Ottawa went on to the round of 8. Oralist prizes are awarded to only about 35 students out of about 600; the best oral advocate award went to Osgoode, second place to Ottawa and students from Osgoode, McGill and Queen’s received honourable mentions. Ottawa placed third and Laval received an honourable mention for their claimant’s memoranda, and McGill placed third for its respondent’s memorandum.

The same Canadian universities will compete in the 2007 Vis Moot and for the first time in 2007, Canada will have a team (Victoria) in the Vis Moot (East) in Hong Kong.

These moots provide an incomparable experience for student mooters. The outstanding performance of Canadian teams and the buzz that they create boost Canada’s profile in the world of international commercial arbitration.

With the growth of commercial arbitration in Canada, the number of well-qualified providers of arbitration services continues to grow. The ADR Institute of Canada has been expanding its activities and raising awareness of arbitration across Canada. ADR Chambers, a leading provider of arbitration services, continues to offer services with a panel of experienced retired judges and senior lawyers. Recently, two prominent commercial lawyers, Bill Horton and Claude Thomson, relocated to its offices. The Osler ADR Centre continues to be busy, and Cherniak McDougall Arbitration Services, a venture of Earl Cherniak and J.L. McDougall, is arbitrating an increasing number of cases.

In 2006, other prominent lawyers, such as leading Canadian arbitrator Marc Lalonde, moved into their own arbitrator practices. Canada now offers considerably more options for those appointing Canadians as arbitrators. Increasingly, leading counsel in Canadian law firms are serving as arbitrators, and a number of senior lawyers, some with specialized backgrounds, are offering arbitration services. Brian Williams, for example, recently brought his insurance and reinsurance expertise to Dispute Resolution Services.

Canadians have been among the world’s leading arbitrators for many years. In 2006, The International Who’s Who of Commercial Arbitration named Yves Fortier one of the world’s leading arbitrators.

An important development for the future of international arbitration in Canada was the formation of the Young Canadian Arbitration Practitioners (YCAP). It promotes international arbitration among lawyers aged 40 or younger, and provides them with professional development and networking opportunities. YCAP already includes some 65 members in Canada and elsewhere (particularly New York, Geneva, Paris and London).

The Arbitration Roundtable of Toronto (of which I am a member) was formed by a group of Toronto commercial litigators and academics experienced in commercial arbitration and sharing an interest in promoting the use of commercial arbitration and Toronto as a place of arbitration. The roundtable promoted Canadian arbitration at the recent conferences, in particular with a dinner for the arbitration speakers at the ILA conference. In 2006, it presented a seminar on commercial arbitration for corporate counsel, and it began 2007 by hosting a dinner, with ADR Chambers’ support, for members of the Toronto commercial arbitration community. The topic discussed was "What can we do to make Toronto a major centre for international and domestic arbitration?"

Following an important year for Canada on the world stage in international arbitration, 2007 should see continued growth in both commercial arbitration in Canada and the prominence of Canada in international arbitration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.