Lexpert Magazine

64 LEXPERT MAGAZINE | JUNE 2017 gal pundits refer to the trend as "judicial creep" or the "Americanization" of inter- national arbitration. e 2015 Survey conducted among in- house counsel and other stakeholders by the School of International Arbitration at Queen Mary University of London found that "cost" is seen as international commer- cial arbitration's worst feature, followed by "lack of effective sanctions during the arbi- tral process," "lack of insight into arbitra- tors' efficiency" and "lack of speed." Nevertheless, says Chiasson, "I think for a Canadian company, you can certainly get through a complex international com- mercial arbitration faster than you can get through most provincial courts." "International arbitration is less stream- lined than it used to be," says Pappas, "but it's certainly more streamlined today than a traditional civil litigation." For a very complicated case, an arbitration, from start to finish, would take two to three years, whereas a civil litigation involving a com- parable dispute can take many years, he says. For a relatively simple case, an arbitra- tion can oen be completed within a year. Some of the organizations have taken steps in recent years to streamline their procedures. e ICDR advertises expe- dited procedures providing for a sole ar- bitrator in cases where no disclosed claim or counterclaim exceeds US$250,000; a streamlined exchange of information; the exclusion of US litigation procedures from information gathering; and a time limit for the issuance of the award from the clos- ing of the hearing. Similarly, the United Nations Com- mission on International Trade Law (UN- CITRAL) arbitration rules, oen used for disputes where no arbitral institution is involved, were revised in 2010 to be more cost-effective. Innovative features were added to the rules in order to enhance procedural efficiency, including revised procedures for the replacement of an arbi- trator, the requirement for reasonableness of costs, and a review mechanism regarding the costs of arbitration. "One way of controlling costs — and the process — is for in-house counsel to remain involved" in the process, says Bienvenu. "In my experience, the costs of arbitration are very much a function of the case-manage- ment abilities of the arbitrator. It's impor- tant for parties, through the presence of their in-house counsel at hearings, to con- vey their expectations of case management. at has a huge impact on cost." Canadian in-house counsel, when consid- ering international commercial arbitration, oen select one of the large, experienced organizations such as the International Chamber of Commerce, based in Paris, the London Court of International Arbitration, based in London, or the ICDR, which is the international arm of the American Arbitra- tion Association. ere are also regional forums that do cross-border arbitration, e.g., the Hong Kong International Arbitration Centre, the Singapore International Arbitration Centre, the Arbitration Institute of the Stockholm Chamber of Commerce, the ADR Institute of Canada in Toronto, and the British Columbia International Com- mercial Arbitration Centre in Vancouver. Which institution, if any, in-house counsel should choose to administer the arbitration "is a very personal preference," says Quintal. "e sets of rules do look very similar. Much depends on the chair of the tribunal. ey may be very hands-on and give a lot of direction. Or they may give great latitude to the parties involved." "You can choose any rules to apply to any arbitration anywhere," says Chiasson. For example, Canadian and Australian disputants might agree upon the London Court of International Arbitration and use its rules of procedure but have the merits of the dispute settled according to Australian law. e permutations and combinations are almost unlimited. e ICC Court of Arbitration is based in Paris, but only a third of ICC arbitration hearings occur there. e remainder take place at ICC-related venues in over 60 oth- er countries. Similarly, while London is the location of the LCIA's headquarters, more than 80 per cent of the cases referred to the LCIA do not involve UK parties. Sometimes parties to a dispute opt for ad hoc arbitration, meaning no institution administers the proceedings. e 2006 Queen Mary Law School / PwC interna- tional arbitration survey found that 76 per cent of responding businesses favoured institutional arbitration over ad hoc arbi- tration. e 24 per cent that preferred ad hoc arbitration were companies with an- nual revenues above US$5 billion. In many cases, these companies have large, sophisti- cated in-house legal teams with experience managing arbitration proceedings. Many in-house counsel have a standard- ized arbitration clause to insert in their international contracts. is is especially recommended when a transaction with a foreign company includes many contracts. It's common, for example, in a joint ven- ture agreement to have many ancillary contracts. "My advice would be to ensure that the arbitration clause in each contract is identical," says Pappas. "You might end up in a situation where you want to consolidate the arbitration un- der one contract with the arbitration under another contract," he says. "e only way in which that will be even remotely possible is if each of the contracts has an identical arbitration clause." Most of the arbitration institutions have standard clauses that they recommend for arbitration under their rules. However, Quintal warns against adopting boilerplate text. "You shouldn't necessarily use the clause that applied to the last dispute for | IN-HOUSE ADVISOR: INTERNATIONAL ARBITRATION | VALÉRIE QUINTAL LAX O'SULLIVAN LISUS GOTTLIEB LLP You shouldn't necessarily use the clause that applied to the last dispute for the next one. You should tailor the clause to the situation. You should think about what types of disputes might arise under your contract.

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