Canada: Canada on the World Stage in International Arbitration

Reprinted from (2006) 72 Arbitration 143-146, Sweet & Maxwell Limited

Canada has garnered increasing attention in recent years in the world of international arbitration. This year will see that attention expand, strengthening the platform for significant growth. Two major international conferences in mid-2006 will highlight the arbitration world’s focus on Canada: the International Council for Commercial Arbitration (ICCA) will hold its 17th Congress (ICCA 2006) from May 31 to June 3 in Montreal, and the International Law Association’s 72nd Biennial Conference (ILA 2006), featuring a 3-day International Arbitration Programme, will take place June 4 to 8 in Toronto. Added to this unprecedented international arbitration programming in Canada will be a London Court of International Commercial Arbitration (LCIA) Symposium on May 31 in Montreal, and an event of the Young Arbitration Practitioners (YAP), comprising young arbitration practitioners from around the world, in Montreal on June 3 following the ICCA Congress.

The ICCA Congress and ILA Conference are receiving broad support from leading Canadian and international law firms, corporations, foundations, government and arbitral institutions. Members of Canada’s international arbitration community are co-operating to host leading arbitration practitioners from around the world. In doing so, they will reinforce to the international community at least three important reasons for Canada’s growing presence and prominence in international arbitration: the many benefits that Canada offers as a place for international arbitration; the impressive body of arbitrators that Canada has available for international arbitrations; and Canada’s talented arbitration counsel with experience and advocacy skills well suited to international arbitration.

The reason why Canada is a good place for international arbitration can be summarised in three words: supportive, accessible and acceptable. First, Canada’s laws and its courts are supportive of arbitration. Canada has modern arbitration statutes. In fact, it led the way in implementing Model Law international arbitration statutes and acceding to the New York Convention. Canadian courts are as independent and competent as any in the world. Recent decisions dealing with Kompetenz-Kompetenz, subject-matter arbitrability, the scope of arbitration clauses, and recognition and enforcement of awards have consistently reaffirmed the support that Canadian courts will give to arbitration and indicated a strong judicial policy favouring arbitration.

Secondly, Canada is acceptable to most of the world as a place for arbitration because it has a multicultural society, a reputation for fairness and neutrality, and both common and civil law systems. From the perspective of many Americans, although Canada is foreign, it is a known commodity. Even though there are marked differences between Canada and the United States, Americans appreciate and are comfortable with Canada’s common law system; legal culture; litigation system (for example, an adversarial system with limited documentary and oral discovery) and style; use of the English language; and approaches to doing business. These similarities are appreciated by people in other common law jurisdictions too, with the added attraction that Canadians are similar to, but are not, Americans. People in Continental Europe, Latin America, Asia and other parts of the civil law world may also appreciate that Canadians are similar to, but are not, Americans. Canada has less of what they see as undesirable aspects of the US legal system. Canada is more international in outlook, has a civil law tradition and is an English/French bilingual country.

Thirdly, Canada is accessible—its major cities are well connected by air to almost all business centres in the world. It has good hearing facilities, with easy access to all modern technologies. For people in many leading business centres, Canada’s time zones are more convenient than those in many other potential places for arbitration. Also, it is not insignificant that for arbitration participants from some parts of the world, Canada is easier to enter than the United States. And Canada’s major cities are attractive places in which to spend time and are reasonably priced.

Canada has a significant number of experienced international arbitrators, including some of the best-known and most highly-rated senior international arbitrators in the world. And just recently Global Arbitration Review ranked three Canadians on its "45 under 45" list.

Many of the acceptability factors discussed above that make Canada a good place for international arbitration apply to make it a good source of international arbitrators and arbitration counsel. In addition, "skills and style" and cost factors make Canada a good place from which to select arbitrators and arbitration counsel. For pragmatic reasons, there may be advantages in choosing Canadians—for those who want discovery but with sensible limits, for those who want cross-examination but with less aggressiveness, for those who want hearings that are more civil and less acrimonious, and for those who want arbitrators and arbitration counsel who will be more familiar with and sensitive to cultural and linguistic differences and the conduct of international modern commercial activity. Canadian arbitration counsel have advocacy skills that are well suited to the international arbitration milieu. Because civil juries in commercial cases are rare in Canada, Canadian counsel are accustomed to making submissions and conducting witness examinations in a non-jury context. For the same reason, their experience in developing case strategies comes from a non-jury context and is likely to be particularly effective in the context of international arbitral tribunals. Finally, but importantly, both Canadian arbitrators and arbitration counsel are "priced competitively" with their counterparts in most of the rest of the world.

Canada’s economy has become more international with Canadian businesses undertaking projects and transactions around the world. These businesses have adopted international arbitration to resolve disputes, recognising that, in most international situations, arbitration is preferable to courts for both the resolution of disputes and the enforcement of decisions. This has fuelled interest in international arbitration. Canadian businesses, and the internal and external lawyers advising them, have become conscious of the importance of resolving disputes in timely and cost-effective ways. Corporate counsel in international business are particularly aware of the benefits of utilising the process flexibility available in arbitration. In these ways, the growth of arbitration in Canada has been market driven. It also has been driven by those who are raising the profile of international arbitration and its advantages, and by an increasing number of Canadians available as arbitrators and counsel.

The ICCA Congress is titled "International Arbitration 2006: Back to Basics?". It will afford delegates a special opportunity to hear and interact with global leaders in arbitration. The ICCA 2006 programme will cover the arbitration agreement, jurisdiction to determine jurisdiction, document production, fact testimony, evidentiary privileges, provisional measures, applicable law, expert evidence topics, non-signatories, treaties, oral argument, and commercial arbitration and transnational public policy. The ICCA 2006 website is www.iccamontreal2006.org.

ILA 2006 will feature an International Arbitration Programme over three days. The ILA Committee on International Commercial Arbitration will present its work on lis pendens and on res judicata in international commercial arbitration and submit its recommendations for approval. The session will include presentations by leading specialists on these topics. In addition, complementary programmes will consider the implications of, and responses to, the new diversity (more women, persons of colour, younger arbitrators and people from all parts of the world) in international arbitration ("The Changing Face of International Commercial Arbitration"); emerging issues in the enforcement of international arbitration awards; issues in arbitrating international intellectual property disputes; and significant developments arising from the expanding body of bilateral investment treaty jurisprudence, with a focus on jurisdictional issues. In addition, leading arbitral institutions will host events during ILA 2006. The International Court of Arbitration (ICC) and the Canadian and American National Committees will host a dinner cruise for arbitration practitioners and their guests, and the International Centre for Dispute Resolution will host a breakfast seminar "Cultural Strategy in International Dispute Resolution", focusing on cultural issues in international arbitration and mediation. The ILA 2006 website is www.ila2006.org.

Canada’s hosting of the international arbitral community is timely. Several developments have been converging to heighten the interest in and profile of Canada in international arbitration, and international arbitration in Canada.

Arbitral institutions’ focus on Canada
Leading arbitral institutions, such as the American Arbitration Association’s International Centre for Dispute Resolution (ICDR) and the ICC, are recognising the opportunities that Canada, its business community and its arbitration practitioners offer and are expanding their presence. The LCIA presented a symposium in Montreal in 2004 and will present another immediately before the ICCA 2006 Congress.

Canadian Bar Association International Arbitration Conferences
For each of the past five years, the Canadian Bar Association has held a successful international arbitration conference. The CBA has brought leading international and Canadian speakers, both from private practice and corporations, to different major cities, in conjunction with a major international arbitration organisation. The conference in June 2005 in Vancouver, in collaboration with the ICC, focused on natural resources, environment and technology disputes. These conferences have contributed to the growing interest in and profile of international arbitration.

Arbitration Roundtable of Toronto
The Arbitration Roundtable of Toronto (of which I am a member) was formed in 2004 by commercial litigators from major Toronto law firms and academia experienced in commercial arbitration and interested in promoting the understanding and use of commercial arbitration, domestically and internationally, and Canada’s—particularly Toronto’s—advantages as a place of arbitration, with many experienced international arbitrators and counsel.

Young Canadian arbitration practitioners
An important development for the future of international arbitration in Canada, and the role of Canadians in international arbitration around the world, was the formation of the Young Canadian Arbitration Practitioners (YCAP) in 2004. It promotes international arbitration among Canadian lawyers and other professionals aged 40 or younger, or new to international arbitration, 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).

Willem C. Vis International Commercial Arbitration Moot
In recent years, Canadian teams have enjoyed remarkable success in this moot in Vienna. In 2004, Toronto’s Osgoode Hall Law School won the moot, and the University of Ottawa was third. In 2005, 4 of the 7 Canadian teams advanced to the round of 32, and 3 of those teams went on to the quarter-finals; Canadians won 14 honours and awards. The success of Canadian students and the buzz they created in the presence of international arbitration practitioners from around the world has strengthened Canada’s profile in the world of international commercial arbitration and highlighted why the Canadian approach and style are well suited to international commercial arbitration.

Providers of arbitration services in Canada
The ADR Institute of Canada has been expanding its activities and raising awareness of arbitration across Canada. ADR Chambers, a provider of arbitration services, continues to offer services with a panel of experienced retired judges and senior lawyers. And recently, several senior lawyers have moved into their own practices as arbitrators, providing more options for those appointing Canadians.

The year 2006 will not only be Canada’s year on the world stage in international arbitration but an important focal point for international recognition of Canadians as international arbitration practitioners and of Canada as a significant place for international commercial arbitration.

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