by the Arbitration Association

Interview with Kimberley Stewart, CEO of Arbitration Place, Joel Richler, FCIArb, Bay Street Chambers, Toronto

April 4, 2019

What are the distinct features of Canadian arbitration?
J.R.: It depends on what those features are compared to. I think that Canadian party appointed arbitrators have great respect for the principle of neutrality, perhaps more so than in some other countries.
Canada is a UNCITRAL Model law state. Canadian courts are more supportive of arbitration than the courts in countries that a have not adopted the Model Law. The US courts for example can be a little bit more intrusive.
Many American lawyers don’t like to use memorial process (filing written evidence), they prefer to have witnesses testified.
It would be harder to set aside an award here than in the US or in England (maybe not as much as in France). Here you have to show that the award was clearly beyond the jurisdiction of the tribunal or prove that gross procedural unfairness (like bribery or corruption) has taken place.

K.S.: Canada is officially bilingual, with many arbitrators speaking both languages, and some with a wide range of other languages because there are so many languages spoken in Canada. Some Canadian arbitrators can conduct arbitrations in more than one language, particularly English and French but also Spanish, for example.

So, one could name Canada as a pro-arbitration country?
J.R.: Absolutely!
K.S.: I agree with Joel. Also, I should add that some of the leading and most well-known arbitrators in the world have been and are Canadian. There is a strong cadre of the next two generations of Canadian international arbitrators – they are talented Canadian arbitrators who can work well both as sole arbitrators and on three-member tribunals, whether as party-appointed arbitrator or as chair/president of the tribunal.

How does a lawyer become an arbitrator in Canada?
J.R.: You call yourself an arbitrator (chuckles). There is no formal requirement or certification. There are many informal ones. At least, there is no single one in sense of a license. One can be a member of ADRIC, and they get appointments though it. Not all arbitrators are lawyers – there are accountants, property evaluators, engineers…

Do you use the title of QC in Canada?
J.R.: The title was abolished in Ontario but remains in British Columbia and several other provinces as well as at the federal level of government.

Do you have cases with Russian-speaking parties?
J.R.: I just had a case with a Russian-speaking party, but they live in Toronto. But in terms of a Russian national coming here from abroad, I don’t think we’ve had such a case yet.
K.S.: We’d love to see more Russian arbitrations come here. They will see the attractiveness of our neutrality, among other things, our costs in Canada are substantially lower than in most of western Europe. They will find that the travel to Canada is not all that much longer too.

Do you invite foreign arbitrators?
K.S.: Yes, if a foreign arbitrator partners with us, we try to raise his or her profile in Toronto. We have also helped overseas colleagues to come to Canada. For example, we have written support letters help them obtain a visa. Russian parties should be considering – and appointing – Canadian arbitrators much more frequently than they have done historically and do today. Canada has many experienced international arbitrators, located across the country, particularly in Toronto, Montreal and Vancouver. They include many former leading Canadian judges on appellate courts (including the Supreme Court of Canada) and on first instance courts.

Do Canadian arbitration centres pay taxes on behalf of the arbitrators?
K.S.: Overseas arbitrators have to pay taxes in their home country. Canadian arbitrators have to pay taxes from their income after the proceedings, and they do it personally. Occasionally Arbitration Place does it on their behalf, using a special bank account.

What was the smallest case you’ve ever done? The largest?
K.S.: We had a case about 1.7 billion dollars.
J.R.: The smallest case I did was about a hundred thousand Canadian dollars, the largest – several hundreds of millions. It really depends what you call a big case: you can have a several billion-dollar claim, and it is worth nothing.

What arbitration rules are used most often? The UNCITRAL rules?
J.R.: Typically, none, as typically the arbitrations are ad hoc. But in an ad hoc context, the procedure would resemble the UNCITRAL rules very closely. All Canadian jurisdictions (10 provinces, 3 territories and federally) are Model Law jurisdictions. If an arbitration is seated here in Toronto, Ontario law on arbitration would apply. The statute in Ontario, the International Commercial Arbitration Act of 1991, which was amended in 2017, is a model one .

How do you see the perspectives of arbitration in Canada?
K.S.: Arbitration is becoming very common. People with a major commercial dispute increasingly will not go to court. They prefer the features that arbitration offers them.
J.R.: The number of commercial cases in courts is decreasing. For a number of reasons: Canadian government has other priorities. The court system has financial issues – there are not enough judges, not enough court houses. Also, there is a pressure in Canadian courts to prioritise criminal cases.

If a counsel was to present a case in front of Canadian arbitrators, how would you advise him/her?
K.S.: Great question!
J.R.: Canadian arbitrators will be comfortable and used to Canadian style of procedure. Before presenting your case, speak to Canadian lawyer not involved in the case early on and get advice from him (or her)!

Dmitry Artyukhov, Editor-in-chief