Lexpert US Guides

18 | LEXPERT • June 2019 | www.lexpert.ca/usguide Binnie and Marshall Rothstein, both for- mer Supreme Court justices; Warren Win- kler, former Chief Justice of Ontario; and Yves Fortier, the former Canadian ambas- sador to the United Nations who has be- come one of the world's leading arbitrators in the 26 years since 1992, when he gave up the post. "Arbitration Place has put together a roster that has international experience, names with which US and other interna- tional parties are comfortable," Whitesell says. "And the cooperation agreements Arbitration Place has developed with international institutions like the Inter- national Chamber of Commerce and the London Court of International Arbitra- tion create a further level of comfort for non-Canadian parties." Toronto boasts other advantages as well, not the least of which is the presence of the Ontario Superior Court of Justice's Com- mercial List, recognized worldwide for its expert and expeditious handling of com- plicated commercial cases. "e judges who make up that list now have arbitration issues as part of their man- date," Keefe says. For its part, JAMS, the world's larg- est provider of mediation and arbitra- tion services worldwide, works out of a 7,000-square-foot facility known as the JAMS Toronto Resolution Centre in the heart of the city, where it focuses on all methods of domestic and international alternative dispute resolution. e facility features a virtual conference room, a break out room, a business center, a sound buff- ering system and a café. Instrumental in helping to promote To- ronto evolve as a pre-eminent location for international commercial arbitration is the Toronto Commercial Arbitration Society, formed in 2010 as a non-profit associa- tion whose objectives include encouraging continuing education among the group's members and providing a forum for the exchange of ideas on all aspects of interna- tional and domestic arbitration. "ere is a lot of backing for arbitration education, which makes Canada more vis- ible and attractive to stakeholders in the arbitration process," Whitesell says. ed the New York Convention in its legisla- tion. And by appending the 2006 Model Law, the legislation modernizes the defi- nition of an arbitration agreement so that it is deemed to exist as long as it has been "recorded" in some way. e old regime explicitly required a written agreement be- fore an agreement was enforceable. Ontario's ICAA also clarifies an ar- bitrator's power to award interim relief, including injunction and securities for costs. It also makes such orders enforce- able by the courts. e old law allowed the granting of in- terim relief, but did not define its scope. e new version is much more specific, allowing such relief, for example, if there are allegations that assets in dispute will be dissipated or evidence destroyed. As well, the new act sets a 10-year limi- tation for enforcing an arbitral award, sup- planting the previous two-year limit. is means that Ontario has essentially done an end-run around the Supreme Court of Canada's 2010 ruling in Yugrane v. Rexx Management, which decided that domes- tic limitations applied to the enforcement of international arbitral awards unless the legislation contained an express provision to the contrary. Turning to the practicalities, it's clear that while Toronto is obviously more con- venient for disputes involving Europeans, Vancouver seems the natural choice when Asian parties are in play. "Cases between US and Asian parties come here because it's convenient and culturally close to the Asian market given the massive number of Asian immigrants here and others who feel at home because they own property or send their kids to school here," says Cicchetti. "As well, the costs are lower compared to other venues like New York or London, and we have excellent facilities." As it turns out, excellent facilities are also among Toronto's strongest draws. ere's little doubt that the opening of Arbitration Place and the Toronto Resolution Centre of JAMS in 2012 have been catalysts for the city's great leap forward to internation- al recognition as an arbitration center. Arbitration Place, which has part- nered with the London Court of Inter- national Arbitration and ICC Canada, is a 17,000-square-foot state-of-the art facility located in Toronto's Bay Adelaide Centre that hosts international and do- mestic arbitrations. e facility boasts LEED gold-cer- tified, centrally located facilities in To- ronto and Ottawa. e all-encompassing approach to hosting arbitrations includes reconfigurable rooms, concierge-level administrative services and an in-house court reporting company, A.S.A.P. Re- porting Services, that offers real-time transcription, simultaneous interpreta- tion and videoconferencing. "Toronto is emerging primarily because arbitrators are enamored with the fact that Arbitration Place has great facilities and a really high level of service at a fraction of the price in New York," Cicchetti says. And it's not just the arbitrators who sing the praises of Arbitration Place. "Many of the people that have been at an arbitration here - arbitrators, parties and witnesses - tell me they have never been ex- posed to better facilities, better support or better technology," Keefe says. e roster at Arbitration Place includes Beverley McLachlin, who served as Chief Justice of Canada from 2000 to 2017; Ian Dispute Resolution "Canada is viewed as a neutral, open and welcoming jurisdiction that is convenient, comfortable, has an international flavor because it has both civil and common law jurisdictions, has the UNCITRAL Model Law as the basis of its arbitration legislation, and boasts commercially savvy courts." Anne-Marie Whitesell, Director of the Program on International Arbitration and Dispute Resolution at Georgetown University Law Center in Washington, DC

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