Commercial Arbitration: A Practical Roadmap for Arbitrating Commercial Disputes 2017

Course Date: April 21, 2017

Total: 5h 47min

Welcome and Introduction

Arbitrator or Judge?

  • what sort of advantages can arbitration provide? What are potential disadvantages?
  • what should you cover in your arbitration agreement in order to maximize the chances of achieving the benefits that arbitration can provide?
  • what sort of disputes are suited to arbitration?
  • can you replicate in the courts some of the perceived advantages of arbitration, rather than choosing to arbitrate?

David E. GruberFarris, Vaughan, Wills & Murphy LLP, Vancouver
Joseph C. McArthurBlake, Cassels & Graydon LLP, Vancouver

If You Decide on Arbitration, How Do You Select and Engage an Arbitrator?

  • finding an arbitrator (rosters, word of mouth)
  • what about using arbitrators who aren't lawyers?
  • should you look for full-time or part-time arbitrators?
  • how and what can you communicate with a prospective arbitrator?
  • disclosure issues
  • settling terms of engagement and remuneration

Michael J. HewittSingleton Urquhart LLP, Vancouver
Murray L. SmithSmith Barristers, Vancouver

What about Med-Arb Rather Than Traditional Arbitration?

  • use of med-arb in commercial settings
  • med-arb raises particular issues including the mediator-arbitrator's receipt of information to which another party may not be privy — how do you deal with these issues?
  • how do you select a mediator-arbitrator?

Arlene H. Henry, QCArlene H. Henry Law Corporation, Vancouver

Networking Break

Update on BC Efforts to Host Arbitrations

  • advisory committee work
  • potential legislative reform
  • marketing efforts

Jonathan N. EadesMinistry of Justice, Victoria

Arbitral Institutions

  • should you use an arbitral institution to administer your arbitration, or at least use its rules?
  • which institution do you choose? (BCICAC, ADRIC, ICC among other bodies)

Tina CicchettiFasken Martineau DuMoulin LLP, Vancouver
Michelle T. ManiagoBorden Ladner Gervais LLP, Vancouver

Arbitration Costs

  • arbitration agreement may provide that each party bear its own costs
  • subject to that, there is a greater scope for arbitrators than the courts to award actual legal fees, but how often does this actually happen?
  • how do costs in arbitration get quantified? Can you have a summary process or are costs "assessed" in the arbitration context as in the courts?

The Honourable Edward C. ChiassonBorden Ladner Gervais LLP, Vancouver

Networking Lunch

Arbitration Procedure

  • when does procedure get set – in the arbitration agreement, rules, later agreement between counsel and/or pre-hearing conference with the arbitrator?
  • in what ways might you consider departing from court litigation?
  • does an arbitrator have "inherent jurisdiction" to control process as in the example in dismissing for want of prosecution?

Gerald W.J. Ghikas, QC Vancouver Arbitration Chambers, Vancouver

How Do You Keep the Arbitration Confidential and Private?

  • is an arbitration presumptively confidential?
  • what can you do to make the proceedings more securely confidential? Is a confidentiality agreement a good idea? How far does it go and over what participants would it extend?
  • can you protect court proceedings related to the arbitration from becoming public? When are sealing orders/publication bans available?

Murray A. Clemens, QCNathanson Schachter & Thompson LLP, Vancouver
Jennifer L. FrancisFasken Martineau DuMoulin LLP, Vancouver

Networking Break

Ignoring an Arbitration Clause

  • what if you have an arbitration clause but don't want to arbitrate though the other party still does? Can you go to court anyway?
  • what are the risks if you do? Risks include:
    • potential expiry of limitation period if commenced in wrong forum
    • facing an application for a stay of proceedings
    • potentially facing damages for breach of the arbitration agreement

J. Kenneth McEwan, QCHunter Litigation Chambers, Vancouver

Asking the Court to Set Aside the Arbitral Award

  • difference between review for "arbitral error" and appeal
  • appeals — when are they available? Should appeals be available? Is it better for appeals to be to court or to an appeal panel at an arbitral institution?
  • what is the BCICAC's new internal appeal process?
  • can you contract out of review or appeal, or expand review/appeal rights beyond what the statute provides for?

Michael FederMcCarthy Tétrault LLP, Vancouver
Richard J. OlsonMcKechnie & Company, Vancouver

Using the Courts to Enforce Arbitral Awards

  • what is the process for domestic awards?
  • is this different from the process for international awards?

Angus M. Gunn, QCEyford Macaulay Shaw & Padmanabhan LLP, Vancouver

Concluding Remarks