60 LEXPERT MAGAZINE
|
JUNE 2017
IN-HOUSE ADVISOR
Arbitration has become the default
for corporations seeking international
dispute resolution. In-house counsel,
however, should keep in mind some
of the peculiarities involved
BY SHELDON GORDON
New Rules
in Neutral Territory
IN JANUARY, Tokyo Electric Power Co. (Tepco) cancelled a long-term uranium supply contract
with Saskatoon-based Cameco Corp. on one day's notice. Cameco said that there was no basis for
the cancellation and that Tepco was in default. Under terms of the contract, the two parties entered
a 90-day, good-faith negotiation period, to be followed by binding arbitration, if necessary.
Canadian corporations are increasingly using cross-border commercial arbitration as a way of re-
solving disputes without civil litigation. is trend is likely to continue as Canada tries to diversify
its commercial relationships and depend less heavily on the US market.
For in-house counsel, it raises the question of whether arbitration should be their company's de-
fault option in the event of a cross-border dispute. And if so, what arbitral conditions should be
included in their contracts?
Records kept by one international arbitration body, the International Centre for Dispute Resolu-
tion (ICDR), show that it administered 126 arbitration cases involving at least one Canadian com-
pany in 2016, up from 104 the previous year. Data from the International Chamber of Commerce
(ICC) show the number of Canadian firms participating in ICC-administered arbitration climbed
to 57 in 2016, a record high and up from 35 in 2015.
"Canada and to a certain extent the US are a bit behind the curve on international commercial
arbitration compared to Europe," says Craig Chiasson, a partner at Borden Ladner Gervais LLP in
Vancouver. "One of the big issues that draws people to international arbitration is whether the con-
tracting parties are willing to trust the jurisdiction of one party's courts or the other's. Canadians
and Americans historically have been fairly comfortable in each other's courts." PHOTO:
SHUTTERSTOCK
