62 LEXPERT MAGAZINE
|
JUNE 2017
Now, however, as Canadian companies
engage in more overseas transactions, the
prospect of litigation in a foreign court
looks more daunting. "A Canadian compa-
ny doesn't want to be dragged before a court
in China if a dispute arises [with a Chinese
company], says Vasilis Pappas, a partner at
Bennett Jones LLP in Calgary. "And the
Chinese company similarly doesn't want to
be dragged in front of a court in Canada.
ey'll try to find a neutral forum with
neutral decision-makers, and typically,
that's done by international commercial ar-
bitration to resolve their disputes." In other
words, explains Pierre Bienvenu, a senior
partner at Norton Rose Fulbright Canada
LLP, "It's the default choice for interna-
tional dispute resolution."
One of the key reasons for choosing in-
ternational arbitration over litigation is
greater ease of enforcement. Reciprocal en-
forcement of court judgments between ju-
risdictions is very limited. In contrast, the
1959 Convention on the Recognition and
Enforcement of Foreign Arbitral Awards,
also known as the New York Convention,
provides that international arbitration
awards are automatically enforceable (with
very narrow grounds for refusal) in every
signatory country. (Angola became the
157th contracting state to the Convention
in 2016.)
Canada went a step further than most
contracting states and declared that all
arbitral awards would be recognized and
enforced in Canada according to the terms
of the Convention, irrespective of whether
the countries involved were signatories.
Another big advantage of arbitration is
that the two parties can engage a tribunal
with expertise in the subject matter of their
contract. "For construction disputes, that's
something that parties will oen choose
to arbitrate, because it's so complex and
you can appoint arbitrators who have ex-
perience in construction law," says Valérie
Quintal, a litigator at Lax O'Sullivan Lisus
Gottlieb LLP in Toronto.
Confidentiality is another appealing
aspect of arbitration. Most sets of arbitra-
tion rules require that the arbitration be
conducted in private with confidentiality.
Public companies may have to make some
disclosure in their regulatory filings, but
proprietary information won't be released
publicly the way it might be in traditional
civil litigation.
Unlike the situation in many courts,
outsiders cannot access the case docket,
written submissions or oral hearings in a
typical commercial arbitration. is allows
parties to address issues away from the glare
of publicity, which may make it easier to
settle the dispute.
Sometimes, however, arbitration is not
the preferred approach to dispute resolu-
tion. "A party may decide on the courts
instead of arbitration because a court rul-
ing sets a precedent, whereas an arbitration
award remains confidential," says Quintal.
"If my contracts are the subject of frequent
VASILIS PAPPAS
BENNETT JONES LLP
A Canadian company
doesn't want to be dragged
before a court in China if a
dispute arises [with a Chinese
company]. And the Chinese
company similarly doesn't
want to be dragged in front
of a court in Canada. They'll
try to find a neutral forum with
neutral decision-makers.
| IN-HOUSE ADVISOR: INTERNATIONAL ARBITRATION |
PHOTO:
SHUTTERSTOCK
