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2017
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LEXPERT 7
tween governments and companies. Arbitration is
popular as an alternative to civil litigation for sev-
eral reasons. It can be more efficient and therefore
less expensive, and it is subject to confidentiality.
One of the biggest reasons for arbitration's
growing popularity, however, is the kind of final-
ity that arbitration decisions provide, in contrast
to the risk of drawn-out appeals in civil litigation
cases. "It becomes pointless to choose the arbitral
route," says Terry, "if you're simply going to end up
going through several levels of court re-arguing
the same issues."
Appeals of arbitration awards "are not neces-
sarily common," says Robert Deane, a partner at
Borden Ladner Gervais LLP in Vancouver. "But
if the outcome of the award is material to either
party, then it's almost expected that there will be
at least an application for leave to appeal. And I
have not seen that phenomenon diminish in re-
cent years at all."
Lawrence acker, a partner at Lenczner Slaght
Royce Smith Griffin LLP in Toronto, agrees. "Ap-
peals are less frequent than in civil litigation cases,
but attempts to change the outcome [of an arbi-
tration] are probably as frequent or more frequent.
Sometimes you have to use a non-appeal route,"
such as an application for judicial review. "In the
end, arbitral awards are more final than court
awards because most of those other attempts to
change the outcome don't succeed."
e Teal case was decided under British Colum-
bia's Arbitration Act, which is similar to statutes of
other provinces and the federal government that
govern domestic commercial arbitration. Provin-
cial statutes governing international commercial
arbitration follow the UNCITRAL Model Law
on International Commercial Arbitration, either
the 1995 or 2006 version.
ere are no "appeals" of international arbitra-
tion awards. However, there are limited grounds
on which they can be "set aside." ose include
matters of jurisdiction, matters of public policy
and certain matters of procedural fairness. "It's
not an appeal on the merits," explains Deane,
"but on whether the arbitrator had jurisdiction to
resolve the dispute, and if they did, whether they
acted in a procedurally unfair manner or contrary
to public policy."
In Canadian domestic arbitration, awards can
be appealed but only on points of law. Awards can-
not be appealed on points of fact. In Teal, the two
grounds cited in the application for leave to appeal
were the arbitrator's alleged failure to identify the
applicable principles of contractual interpretation;
and an alleged error in the interpretation of a stat-
ute that governs the disposition of the commercial
arbitration. (In Teal, the parties were governed by
arbitration rules set out in a BC statute called the
Forestry Revitalization Act.)
Block, QC, Randall W. Borden Ladner Gervais LLP
(403) 232-9572 rblock@blg.com
Mr. Block, QC, specializes in all forms of dispute resolution in the energy/oil
& gas industries, including regulatory proceedings, litigation and arbitration.
He has appeared before the Alberta Court of Queen's Bench, Alberta Court
of Appeal, Supreme Court of Canada, Alberta Utilities Commission, Alberta
Energy Regulator, National Energy Board and various arbitral panels.
He is an ACTL Fellow.
Bjorkquist, Sonia L. Osler, Hoskin & Harcourt LLP
(416) 862-5876 sbjorkquist@osler.com
Ms. Bjorkquist defends companies in class actions, commercial arbitration
and other complex litigation, including disputes involving product liability,
director/officer liability and business-critical issues relating to commercial
agreements. She is Chair of Osler's National Litigation group, and President
of the Advocates' Society.
Bishop, David C. Gowling WLG
(403) 298-1941 david.bishop@gowlingwlg.com
Mr. Bishop practises corporate/commercial litigation with an emphasis
on directors' and officers' defence, product liability, professional liability
disputes, shareholder disputes, class actions, large property claims
and environmental litigation.
Binnie, CC, QC, Ian Lenczner Slaght Royce Smith Griffin LLP
(416) 865-3737 ibinnie@litigate.com
The Honourable Mr. Binnie served for nearly 14 years as a Justice of the
Supreme Court of Canada. He draws on his judicial insights and courtroom
experience acquired over 30 years as one of Canada's top litigators. He is
regularly consulted by governments and private parties on a range of private
and public law issues, and carries on an active practice as a domestic
and international arbitrator.
Bienvenu, AdE, Pierre Norton Rose Fulbright Canada LLP
(514) 847-4452 pierre.bienvenu@nortonrosefulbright.com
Mr. Bienvenu practises international arbitration, commercial litigation
and constitutional law representing government bodies, corporations and
individuals before the Supreme Court of Canada in a range of constitutional
and commercial law disputes.
Bertrand, AdE, Jean G. Norton Rose Fulbright Canada LLP
(514) 847-4401 jean.bertrand@nortonrosefulbright.com
Mr. Bertrand focuses on corporate and commercial litigation, class actions,
arbitration and administrative law including competition, transportation,
international trade and energy. He is a Fellow of the American College
of Trial Lawyers.
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