FTI Consulting Panel
On October 19, 2022, FTI Consulting and CanArbWeek announced the launch of a survey of the Canadian-based arbitration community. This is survey is the first to attempt to catalogue in a comprehensive way Canadian arbitration practices and the experiences of arbitration practitioners based in Canada. The results will be compiled in a 2023 Canadian Arbitration Report. The survey organizers hope to make it an annual event, so as to develop an accurate picture of how arbitration in Canada evolves over time.
The panel featured the survey’s co-chairs: Professor Janet Walker and the Honourable Barry Leon, and three directors from FTI consulting: Francois Poirier (Senior Director, Construction Solutions, Montreal); Natalie Quinn (Managing Director, Economic Consulting, Vancouver); and Tara Singh (Managing Director, Economic Consulting, Toronto).
Purpose and Inspiration of the 2023 Canadian Arbitration Report
Francois Poirier kicked off the panel by explaining the goal of the survey to support the growth of arbitration in Canada through gathering accurate statistics. The main purpose of the survey is to provide greater insight about the current state of arbitration in Canada and the factors likely to affect its future.
The Canadian Survey drew inspiration from the 2020 Australian Arbitration Report, an initiative spearheaded by The Australian Centre for International Commercial Arbitration (ACICA), with the support of FTI Consulting Australia. That report outlined the results of a survey that collected information about the nature and extent of arbitration activity involving Australia, Australian parties, and Australian practitioners. Its results showed some interesting trends across different industries, and most importantly showed a fast pace of growth overall for commercial arbitration in Australia.
Who Will Benefit?
Following the introduction of the initiative, Natalie Quinn then moved on to highlight four key stakeholder groups for which the survey would provide obvious benefits. These groups include:
- Arbitration Counsel, Arbitrators, and Tribunal Assistants: The survey will provide insights on current trends in arbitration practices, ultimately leading to better service delivery for clients and disputing parties.
- Corporate Counsel: The survey results can be used to approach the users of arbitration, in particular in-house counsel, to help shift resource allocation and budgeting decisions about dispute resolution, and to increase the use (and improve the drafting) of arbitration agreements.
- Academics: While the survey may not support research grant applications, better information about the growth of arbitration in Canada can be useful for reallocating university resources. The data collected could build a case for hiring faculty who specialize in arbitration, offering courses and participating in moots in the field, and developing arbitration thought leadership.
- Experts and Service Providers: Experts and other service providers may be able to make use of the survey results to better understand the market in arbitration for their services, identifying potential opportunities, growth areas, and trends.
Scope of the Survey
Quinn then discussed the scope of the survey, which intends to collect data on all commercial arbitration activity in Canada, domestic and international, including investor-state and sports arbitrations, taking place wholly or partly in the period from January 2020 onwards.
It was further noted that while the Canadian Survey aims to collect data from all Canadian arbitration practitioners, it is specifically looking to survey three key groups: (1) arbitrators and tribunal assistants; (2) arbitration counsel, and (3) expert witnesses. To do so, FTI Consulting has developed three separate surveys which include questions tailored specifically to each respective group.
2023 Canadian Arbitration Report: Key Topics & Themes
The survey’s co-chairs, Walker and Leon, then discussed what themes they expect to be able to report on once the survey results have been compiled and analyzed. These include:
- Growth and Trends in Canadian Arbitration: the survey hopes to report on the growth and changes in the use of arbitration. Additionally, the Canadian Survey may serve as a baseline for future surveys (perhaps focusing on different issues) to track the arbitration growth in Canada.
- Choice of Arbitration: insights as to why arbitration is and is not being chosen over litigation, to what extent counsel are able to include a dispute resolution clause in contracts or recommend arbitration, and whether arbitration is chosen independently of counsel’s recommendations.
- Industry Sectors: we do not have sufficient data on a lot of sectors at the moment, this survey may provide useful data on the extent to which arbitration is utilized in different sectors to assist practitioners in determining where arbitration could be used.
- Seats and Venues: the survey aims to provide data on the reasons why clients choose seats in Canada, and report on any trends with respect to the selection of some Canadian cities over others, and Canadian versus foreign seats.
- Choice of Institution: what institution, if any, is being chosen? Are these institutions international or regional? Is ad hoc arbitration as much more common than institutional arbitration in Canada as anedotal data suggests?
- Procedural Efficiency: what kinds of innovation and improvements are taking place, so as to guide practitioners to more effectively improve arbitration practices.
- Use of Mediation with Arbitration: insights on the extent that mediation is used before or in concert with arbitration and what role tribunals play in mixed-mode dispute resolution.
- User Satisfaction: are commercial parties pleased with their choice of arbitration? With which aspects of arbitration are they generally satisfied or unsatisfied? The data collected will hopefully provide insight into the ways that we can increase that satisfaction.
The survey can only be successful in achieving its goals if sufficient numbers of arbitration practitioners take the (relatively short) time needed to fill it out. In terms of time commitment, the total time to complete the survey should take between 20–40 minutes, depending on the participant’s practice. For efficiency, Quinn recommended that participants gather information about the arbitrations in which they have been involved since January 2020 prior to answering the questions. The survey will close on December 31, 2022.
In terms of data security, Leon emphasized that the survey data will be collected through a double-blind process in order to maintain participants’ privacy. The data will be collected by a survey group at FTI Consulting, who will not any information that could identify survey participants or connect their identities with their responses. Only this redacted and aggregated data will be available to those who will analyze the information and eventually compile the final report.
How to Access the Surveys
You can access the surveys at the following links:
- Arbitrator & Tribunal Assistant Survey – https://selfserve. decipherinc.com/b/31e5/arbitratorsurvey
- Arbitration Counsel Survey – https://selfserve. decipherinc.com/b/31e5/counselsurve y
- Expert Survey – https://selfserve.decipherinc.com/ b/31e5/expertsurvey
Please note that the surveys will be closed on December 31, 2022.
* JD Student, Queen’s University Faculty of Law; Managing Editor of Volunteers, Canadian Journal of Commercial Arbitration.