For commercial dispute resolution arbitration has become the
preferred solution that provides a fast, efficient and commercially
appropriate approach to resolving complicated disputes in a
Although there is some use of arbitration for environmental
disputes, court actions have predominated. The advantages of
arbitration weigh heavily in favour of an expanded use in resolving
environmental disputes. Arbitration clauses could easily be
incorporated into remediation and indemnity agreements, agreements
of purchase and sale, warranties and consulting agreements.
There are several advantages; first of all an arbitrator with an
environmental background either in law or engineering or both is
able to assess complicated environmental evidence using a practical
approach instead of a purely legal approach to liability. This is a
particular advantage in cases where the scope of environmental
indemnities is an issue where the quantum of damages depends on
expert evidence. Similarly, where mitigation of loss or the use of
reasonable mediation strategies are key issues, having an
arbitrator with specialized knowledge should create a better damage
assessment. An arbitrator with regulatory experience can readily
assess the regulatory standards applied in environmental claims and
test regulatory risks and compliance.
Furthermore, the parties to an arbitration have the power to
have the matter heard privately under confidentiality agreements
which protect the environmental elements from outside scrutiny
while at the same time providing a full disclosure hearing to the
parties. No such similar protection occurs in the courts where all
of the evidence, documents and expert reports are public
The parties can also adapt the hearing process to their
particular needs through case management by the arbitrator who is
hearing the ultimate case. In many cases, production of documents
and examinations for discovery are done within a framework and time
limitations which both minimizes the burdens on the parties but
provides an adequate disclosure. Similarly, hearings and, in
particular, expert evidence, can be dealt with more efficiently by
filing expert reports, reply reports, agreements on issues and
proper delineation of the matters in dispute even before the
hearing begins. At the hearing itself, evidence in chief is often
presented by way of witness statement followed by cross-examination
and re-examination. Much of the documentary evidence is often
admitted on consent which can also save significant hearing
International arbitration awards are more readily enforced in
other counties than court awards, even domestic awards are
generally enforceable after a simple court proceeding as if they
were judgments of the court.
There are still instances however where a court proceeding may
be preferable, such as cases where an immediate injunction is
required to stop a spill of contamination, or where the parties
wish to establish a legal precedent that would be binding in the
event of future similar factual situations. However in the vast
majority of cases, arbitration is a preferable method of resolving
disputes in a timely, efficient and cost effective manner.
About Fraser Milner Casgrain LLP (FMC)
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firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
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of where you choose to do business in Canada, our strong team of
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and cross-border matters. FMC's well-earned reputation for
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