by the Arbitration Association
RU

As far as it gets: Arbitration.ru meets Canadian arbitration

April 4, 2019

Maple syrup, hockey, and a popular domicile for mining companies…Russian-speaking arbitration professionals are not very familiar with what is happening in Canada and Canadian arbitration in general. 

However, Toronto, the business capital of Canada, also called “a city that works”, hosts many shareholder and partnership disputes, as well as mining and construction cases, and a good body of energy arbitration takes place in Calgary. Here’s a 101 on Canadian arbitration that we discuss with Kim Stewart and Joel Richler in the spacious offices of Arbitration Place – a private arbitration hearing centre and arbitrators’ chambers in the financial district of Toronto.

Firstly, In Canada, there is no single unified arbitration institution, like established institutions LCIA or the ICC. There is an ADR organization, ADR Institute of Canada (ADRIC), which also administers domestic arbitrations and mediations. The British Columbia International Commercial ArbitrationCentre (BCICAC) has its own rules and administers arbitrations. The ICDR division of the American Arbitration Association administers some cases in Canada and has a set of Canadian rules.  The ICC administers Canadian cases from New York, and the LCIA from London.

Arbitration centres in Canada are private initiatives. Such centres do not focus on particular types of disputes, but individual arbitrators have their own specialties.  

Many of the disputes are domestic. Many of the arbitrations are ad hoc or under the UNCITRAL rules. Expedited procedure exists, not in a strict formal way, but is mostly used during ad hoc arbitrations, where a procedure is developed individually to meet the request for speedy arbitration. Joel mentions his experience as an emergency arbitrator in an expedited procedure.

Further, mediation is widespread in Canada, with a division between mediation and arbitration. Parties either mediate or arbitrate, and it is not a part of the same process, although parties often mediate disputes at some point during the course of an arbitration. When cases are tried in the courts, mediation is mandatory in some Canadian jurisdictions (including the province of Ontario). Mediation is part of the court process, the rules of the courts order it, and then private mediators come into play.

For international cases, it is not uncommon to see reference to the IBA Rules for the Taking of Evidence as part of the procedure in both ad hoc and institutional cases. 

In sunny Vancouver, we discussed the role of women in arbitration with Tina Cicchetti, an independent arbitrator, and currently the Chair of the Arbitration Committee of ICC Canada. We touch upon the problem of the so-called “pipeline leak” – a topic pitched by our editorial board members and arbitrators Olena Perepelinskaya and Elina Mereminskaya[1].

“The pipeline leak” is a gender equality problem meaning that while an approximately equal number of men and women start their legal career, only a fraction of women progress to partner level at a law firm and fewer women are appointed as arbitrators. 

Tina Cicchetti admits this problem exists in Canada like in other countries. While a common conception is that this is caused by unequal treatment (like “the business is dominated by men”), Tina gives an interesting “internal” perspective on the issue. Work at a partner level has been increasingly demanding over the last years, says Tina, who had worked in a law firm before starting her independent arbitrator career. Not many are ready for this level of commitment, which largely demands to sacrifice time needed for other priorities in life, like family or hobbies. Only exceptional people have the energy to pursue both partner’s career and their other priorities. Others, having spent some years in a law firm, decide they prefer not to make such a sacrifice. Perhaps women are those to see their priorities early on, concludes Tina.

…Canada is geographically far away from Russia and Europe, but in a globalised world it seems its arbitration scene and its problems are similar to European ones. How many years will pass before we see Russian disputes in Canada? I think about this when I walk past the Vancouver’s Lions Gate Bridge and listen to the lull of the Pacific Ocean.

….

Insert: Arbitration Place

Arbitration Place is a privately owned arbitration venue in Toronto of about 2000 square meters of space, with a smaller hearing centre in Ottawa, and has 22 employees and 55 contractors. Court reporting is the mostly demanded service, alongside with tribunal secretary services, and administrative and translation services. English is the prevailing language of the hearings, with French occasionally used in Ottawa location. 

There are two locations of Arbitration Place – one in Toronto and one in Ottawa, and there is an unrelated arbitration centre in Vancouver, Vancouver Arbitration Chambers. Centres like Arbitration Place do not administer arbitrations, but provide specialized facilities to host arbitrations.  Also, Arbitration Place is an arbitration chamber.

There are over 30 arbitrators on the roster of Arbitration Place, both Canadian and international. If a party is interested in an arbitrator, Arbitration Place forward the request to the roster member or members.

Lists and CVs of Canadian arbitrators can be found on the website of Arbitration Place https://www.arbitrationplace.com/arbitratorsand the website of the Canadian Chamber of Commerce, which is ICC Canada http://www.chamber.ca/arbitration/canadian-arbitrators/.

Dmitry Artyukhov, Arbitration.ru Editor-in-chief



[1] see article «Women in arbitration congress», Arbitration.ru №2 (6) 2019, pp.31-32.