pursuing investments in arbitration
claims that are purely domestic as
well," he adds.
Robert Wisner, a partner and
Co-Chair International Arbitration
at McMillan LLP, agrees that third-
party funding is a growing trend in
international commercial arbitration.
Wisner says third-party funding,
"for the most part, has been utilized
in the context of foreign investor/
state arbitrations where disputes tend
to feature very large claims, are very
heavily contested, and the company
that is a claimant has lost a key asset
and therefore will usually be finan-
cially distressed."
However, Wisner, based in To-
ronto, has increasingly seen third-party funding used in
company-to-company arbitrations. "It would be a mistake
to assume these users are necessarily insolvent or cash-con-
strained entities. I think businesses recognize that a large-
scale dispute can be a substantial drain on their finances and
they may want to spend the money elsewhere without giving
up valuable legal rights."
e caveat is that it does require a shi in mindset; as "in
the Canadian marketplace, third-party funding has tradi-
tionally been associated with plaintiff 's side class-action law-
yers who get third-party funding to pay for disbursements or
to get a cost indemnity in class actions," he says. "As a result,
it is perceived as more of a threat to businesses rather than an
opportunity to manage costs."
Wisner points out that "there's a number of features of
commercial arbitrations that are very attractive for funders
and not necessarily limited to the special class of very
unique investor-state disputes. First, arbitration is usually
faster than litigation in reaching a final result, especially in
international cases where there is no right of appeal. is
is important to funders looking at the length of time for a
return on their investment. Second, commercial disputes
oen turn on the meaning of words in a contract and there-
fore can be more predictable than cases that turn on the
credibility of a witness."
e advent of third-party funding may give rise to issues
concerning confidentiality and legal privilege. Deane says
third-party funding in commercial arbitration "is sometimes
Bunting, James (Jim)
Davies Ward Phillips
& Vineberg LLP
(416) 367-7433
jbunting@dwpv.com
Mr. Bunting's broad liti-
gation practice includes
corporate commercial
disputes, class action
defence, securities
matters, advertising
disputes, D&O liability,
insolvency, defamation,
franchise law
and sports disputes.
Callaghan, John E.
Gowling Lafleur
Henderson LLP
(416) 369-6693
john.callaghan@gowlings.com
Mr. Callaghan has a
broad practice. He ap-
pears before all levels
of courts and tribunals.
His expertise is often
sought for complex
cases and he has been
described as "unflap-
pable" in his handling
of the myriad of cases
in which he is involved.
Campbell, A. Neil
McMillan LLP
(416) 865-7025
neil.campbell@mcmillan.ca
Mr. Campbell is one of
Canada's pre-eminent
competition lawyers.
His competition law
practice focuses on
merger clearances
under the Competition
Act; reviews under the
Investment Canada
Act; representation
in cartel and abuse
of dominance.
Byers, David R.
Stikeman Elliott LLP
(416) 869-5697
dbyers@stikeman.com
Mr. Byers heads the
Toronto Litigation
Group. His practice
includes commercial
litigation at trial and ap-
peal. A member of the
Insolvency Institute of
Canada, the Litigation
Counsel of America and
a former director of The
Advocates' Society.
Cameron, Donald M.
Bereskin & Parr LLP
(416) 957-1171
dcameron@bereskinparr.com
Mr. Cameron is a part-
ner with Bereskin & Parr
LLP. His practice focus-
es on intellectual prop-
erty litigation, particu-
larly relating to patent,
trademark, copyright,
trade secrets law and
technology licences, as
well as trademark
prosecution.
Campbell, Nigel
Blake, Cassels
& Graydon LLP
(416) 863-2429
nigel.campbell@blakes.com
Mr. Campbell has
leading experience in
securities and corporate
commercial litigation.
His national capital
markets practice en-
gages the courts and
all securities regulators.
"OVER THE YEARS, THERE HAS BEEN
AN INCREASE IN APPLICATIONS FOR
LEAVE TO APPEAL FROM AWARDS, BUT
SATTVA HAS EFFECTIVELY CLOSED
THE DOOR ON A NUMBER OF THOSE
APPLICATIONS. GOING FORWARD,
BUSINESSES NEED TO KEEP THIS IN
MIND WHEN DECIDING BETWEEN
ARBITRATION AND LITIGATION
IN THEIR AGREEMENTS."
– Tina Cicchetti
Fasken Martineau DuMoulin LLP
Alternative Dispute Resolution
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