CIArb 8th Annual Symposium on International and Domestic Arbitration in Canada
The CIArb held its 8th Annual Symposium on International and Domestic Arbitration in Canada on September 23rd. The symposium included one panel on domestic arbitration, one on international arbitration, and a Q&A.
Panel Session #1
The domestic panel explored the theme Doing it Right: Ethics for Domestic Commercial Arbitration. It offered an unusual and engaging format, in which each panelist was given a specific fact pattern that presented ethical questions often confronted by arbitration practitioners, to which the panelists were asked to respond. Marvin Huberman (Independent Arbitrator & Chair of the ADR Institute of Ontario) moderated the discussion featuring Olivier Despres (Independent Arbitrator based in Montreal), Julie Hopkins (Calgary-based Independent Arbitrator), and Daniel Urbas (Montreal-based Independent Arbitrator).
First, Olivier Despres was presented the case of an arbitrator who had overstated their qualifications in an area key to the dispute. Despres’s comments focused on arbitral collegiality and transparency. He related a personal experience where he sat as a co-arbitrator, and he and the other co-arbitrator appointed a chair who had misrepresented their qualifications, and in fact lacked expertise crucial to understanding and resolving the dispute. This anecdote illustrated the damaging effects false representation can have on arbitral processes, and Despres concluded in favour of complete and ongoing transparency. He explained that disclosure should not be seen as admitting to a fault or weakness, but rather as an appeal to transparency that quashes potential problems before they arise.
Second, Julie Hopkins was faced with the dilemma of an impatient arbitrator who created a lopsided procedure to quicken proceedings, arguably prejudicing the ability of one party to present their case (or at least putting that party at a disadvantage). Here, viewers saw the tension between arbitral efficiency and the need to give parties a full opportunity to present their case. Hopkins concluded that an arbitrator could elect to remind counsel of time restraints tactfully. Prejudicing a party’s ability to present, however, is an unacceptable constraint on due process.
Third, Daniel Urbas, the founding director of CIArb’s Canada Branch, confronted a fact pattern in which an arbitrator learned —through an arbitration—that a problematic third-party product benefitted from almost ubiquitous usage in a given industry. The arbitrator used this knowledge to seek out the product’s manufacturers and express interest in acting as arbitrator in their future disputes. During this conversation, the arbitrator cited his knowledge of their product from a past case, and intimated that he held sympathy for the liability issues they faced. Urbas argued that this fact pattern is indicative of why a litigator and an acting arbitrator must have separate and distinct ethical codes. A litigator in this situation could be seen as a sly salesman, simply selling their passion for an issue to a client. Conversely, the arbitrator in this fact pattern, according to Urbas, was acting as an unfair opportunist. There is something inherent and privileged about the role of an arbitrator; using information garnered from past cases to find and impress new clients is highly problematic. Further, implying partiality to the plight of the manufacturer made the arbitrator’s actions extremely problematic and inappropriate.
Here, Despres offered another illuminating anecdote of a potential client in a franchise-based arbitration asking whether he was ‘pro-franchise, or franchisee’? This dilemma prompted the question: How can an arbitrator best sell their experience (and by extension their services) without betraying their past decisions or the details of their cases? The answer was simple: the more an arbitrator writes and presents at conferences, the more it is obvious he/she has experience. Despres concluded that publishing and conference presentation is “best marketing tool”. The goal is not to sell specific experiences (which might cross the line into improperly leveraging past appointments to garner new ones), but rather to promote oneself as a creative problem-solver and prolific thinker.
Panel Session #2
The international panel’s topic was entitled Delivering on the promise; experiences, issues under debate, and practical considerations in the use of expedited and emergency arbitrator rules. Jae Sung Lee (Officer of Legal Affairs, United Nations and Secretary, UNCITRAL Working Group II), Mark Morrill (Independent Arbitrator and Mediator), and Marek Krasula (ICC Regional Director for North America) each summarized the current landscape of expedited and emergency arbitrator rules, and discussed current successes and challenges in the system. The discussion was moderated by Lisa Munro of Lerners LLP.
The takeaways were clear. The system of expedited and emergency arbitrations, although nascent and still undergoing codification, is a largely positive development. Krasula noted that out of 200 cases of emergency arbitrations canvassed by the ICC, in a promising 60 cases the parties expressly opted in. Morrill posed the question of whether some of these opt-ins were driven by the drastically smaller pay scale afforded by emergency arbitration. This question remains unanswered but may provide an excellent framework for justifying emergency arbitrations in the future.
During discussion, the question was posed: how will expedited and emergency arbitrations balance efficiency (in timelines that are often contained to two weeks) with due process? Morrill explained that the current rules ICC, like all other arbitrations, provide extensive leeway to arbitrators to balance speed and due process dependant on the facts and issues they are faced with. Lee seconded Morrill’s conclusion and stated that the UNCITRAL Rules on Expedited and Emergency Arbitrations will also allow arbitrators extensive leeway.
After some technical issues were resolved, the panellists reflected on what those kinds of hiccups mean for remote hearings. The point was made that while technical problems arise with some frequency, they are unlikely to spoil an opening argument, cross-examination, or the like. In comparison, the issues that can arise with in-person arbitral proceedings—such as problems attaining visas—are less frequent but may be more detrimental to an arbitration’s schedule and costs.
The CIArb’s 8th Annual Symposium on International and Domestic Arbitration was notable for the wide range of issues covered, and the style and substance brought by the panellists. They presented well-prepared remarks, gave answers to difficult questions, and they imbued discussions with stories and ideas that were personal to their journeys through the ever-changing landscape of domestic and international arbitration.