Commercial Arbitration: A Practical Roadmap for Arbitrating Commercial Disputes

Course Chair
Ludmila B. Herbst, QC — Farris, Vaughan, Wills & Murphy LLP, Vancouver

Online Moderator
Emily Kirkpatrick — Hunter Litigation Chambers, Vancouver

About the Course Chair
Ludmila B. Herbst, QC is a partner at Farris, Vaughan, Wills & Murphy LLP, practicing in the fields of commercial litigation, commercial arbitration, and regulatory law. Ludmila is a co-author of Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations, and is the assistant editor of the Advocate.

Faculty
The Honourable Edward C. Chiasson, QC — Borden Ladner Gervais LLP, Vancouver
Tina Cicchetti — Fasken Martineau DuMoulin LLP, Vancouver
Murray A. Clemens, QC — Nathanson Schachter & Thompson LLP, Vancouver
Jonathan N. Eades — Ministry of Justice, Victoria
Michael Feder — McCarthy Tétrault LLP, Vancouver
Jennifer L. Francis — Fasken Martineau DuMoulin LLP, Vancouver
Gerald W.J. Ghikas, QC — Vancouver Arbitration Chambers, Vancouver
David E. Gruber — Farris, Vaughan, Wills & Murphy LLP, Vancouver
Angus M. Gunn, QC — Eyford Macaulay Shaw & Padmanabhan LLP, Vancouver
Arlene H. Henry, QC — Arlene H. Henry Law Corporation, Vancouver
Michael J. Hewitt — Singleton Urquhart, Vancouver
Michelle T. Maniago — Borden Ladner Gervais LLP, Vancouver
Joseph C. McArthur — Blake, Cassels & Graydon LLP, Vancouver
J. Kenneth McEwan, QC — Hunter Litigation Chambers, Vancouver
Richard J. Olson — McKechnie & Company, Vancouver
Murray L. Smith — Smith Barristers, Vancouver

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. Gruber — Farris, Vaughan, Wills & Murphy LLP, Vancouver
Joseph C. McArthur — Blake, 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. Hewitt — Singleton Urquhart LLP, Vancouver
Murray L. Smith — Smith 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, QC — Arlene H. Henry Law Corporation, Vancouver

Networking Break

Update on BC Efforts to Host Arbitrations

• advisory committee work
• potential legislative reform
• marketing efforts

Jonathan N. Eades — Ministry 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 Cicchetti — Fasken Martineau DuMoulin LLP, Vancouver
Michelle T. Maniago — Borden 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. Chiasson — Borden 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, QC — Nathanson Schachter & Thompson LLP, Vancouver
Jennifer L. Francis — Fasken 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, QC — Hunter 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 Feder — McCarthy Tétrault LLP, Vancouver
Richard J. Olson — McKechnie & 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, QC — Eyford Macaulay Shaw & Padmanabhan LLP, Vancouver

Concluding Remarks