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François Giroux, a litigation partner in
McCarthy Tétrault LLP in Montreal, has
also noticed an increased interest in arbi-
tration during the pandemic — "the conse-
quence of the very practical reality, which
was that courts slowed down their activities."
"We also see courts can be efficient," he says,
"when access was more limited or difficult.
And we have clients who have shown interest
in going to arbitration for disputes they might
have otherwise brought to the courts."
Although it can be challenging to switch
horses mid-dispute, parties to contracts
that are being draed now are sensitive to
backlogs in the courts, says Meighen. He is
seeing a new interest in arbitration that he
predicts will span another one to three years
from now.
If the pandemic is a relevant factor for
parties deciding whether to include arbi-
tration clauses in their future agreements,
"it would be on account of backlogs in the
courts and the possibility that resolution
of their dispute would be delayed," Kuntz
says. Speed has always been a consider-
ation for parties who choose to arbitrate,
she adds. Still, they also decide to include
an arbitration clause based on other factors
such as confidentiality or finality (given the
limited rights of appeal from an arbitration
decision).
"At the end of the day, pandemic or not,
parties need to focus on choosing the best
avenue for resolution of their potential
dispute in light of all of the factors that are
important to them…, and whether the speed
with which they can have their dispute
resolved will be impacted by pandemic-re-
lated issues."
Disputes and business claims
A busy year in litigation saw the types of
claims that many expected at the onset
of the pandemic, says Giroux, such as
