We all know the majority of arbitration rules impose confidentiality obligations on arbitrators and counsel.  But, they typically do not address possible exemptions on that requirement which may be utilized if arbitrators feel compelled to address issues of illegality by breaking that obligation of confidence.

Obviously an arbitrator or arbitral panel are not in the same position as a judge who can investigate issues of illegality.  The panel has an obligation to maintain the confidentiality of the proceedings.

Continue Reading Illegality and Corruption in International Arbitration: The Role of Arbitrators and Counsel

On May 18, 2017, the United States served notice on Mexico and Canada that it intended to renegotiate the North American Free Trade Agreement (“NAFTA”).  The first round of negotiations is scheduled to begin in Washington D.C. on August 16th continuing to August  20th.

On July 17, 2017 the US Trade Representative (“USTR”) released a document entitled “Summary of Objectives for the NAFTA Renegotiation”.  This document sets out the goals of the United States for revisions to NAFTA (the “US Objectives”).  The US Objectives are subdivided into different categories, with each one a major component of the NAFTA negotiations.

In response to the release of the US Objectives, the Canadian government has decided to extend indefinitely the consultation period which was set to expire on July 18, 2017.  Any Canadian person or organization is free to provide comment on Canada’s objectives at this time.

Continue Reading Arbitral Dispute Resolution in Flux: US Positions in NAFTA Renegotiations

Class arbitrations are commonly hailed as the “next big thing” in the realm of private dispute resolution. Their advantages would be many: class arbitrations would, in much the same way as class actions, provide a procedural vehicle for individuals to assert their rights in cases where individual damages may be small but the collective liability is large, while also avoiding the often delay-plagued and overburdened civil justice system and the costs of litigation. Class arbitrations, may, in certain ways, be better than class actions at achieving the goals of improved access to justice, judicial economy, and behaviour by taking advantage of the efficiencies built into arbitration as a judicially-sanctioned means of alternative dispute resolution.

Continue Reading The Perennial (Unrealized) Promise of Class Arbitration

The role of third party funders in international arbitration has recently undergone an important evolution and expansion. An increasing variety of companies are now looking to third party funding as a means of financing their arbitral disputes. Correspondingly, more companies now view funding arbitration and litigation as a potentially lucrative investments. This increase and expansion in the use of third party funding, however, engages both new and old concerns about the role of the third party funder in the legal process. Different jurisdictions have addressed these concerns in different ways.

Continue Reading Hong Kong and Singapore march towards more (and more regulated) third party funding in international arbitration

In the June 3, 2017 edition of the Canada Gazette – Part I, Vol. 151, No. 22 (the “Consultation Notice”), Canada officially announced the start of consultations for the renegotiation and modernization of the North American Free Trade Agreement (“NAFTA”). Concerned parties may make written submissions on or before July 18, 2017.

These consultations come on the heels of US President Donald Trump’s May 18, 2017 official notice to the US Congress and the leaders of Canada and Mexico that it is his government’s intention to either reopen NAFTA for negotiation or exit it altogether. This is an important opportunity for industry and stakeholders to provide input to the Canadian government on key trade and investment issues in all three NAFTA countries.

Continue Reading Canada Begins NAFTA Consultations

Limitation of liability clauses in contracts are approached very differently in Canadian law and U.S. law.  Under Canadian law, such clauses are almost always enforced in commercial transactions, and are exceedingly difficult to get around for plaintiffs whose claims exceed the stipulated damages.  Under U.S. law, by contrast, such clauses are not enforceable in contracts for the sale of goods if the result would be a “failure of essential purpose”.  This difference between the two legal regimes has important implications for the drafting of contracts for cross-border transactions, and for litigating cross-border contractual disputes.

Continue Reading Avoiding Limitation of Liability Clauses in Contracts: Lessons from Two International Arbitrations

On March 22, 2017, the Ontario government enacted the International Commercial Arbitration Act, 2017 (“ICAA 2017”) as part of broader legislation to reduce regulatory burdens on businesses and achieve costs savings for government. ICAA 2017 replaces a previous version of the law enacted in 2006 (“ICAA 2006”).

Continue Reading Ontario’s International Commercial Arbitration Act Gets a Makeover

The selection of an appropriate “seat” is arguably one of the most important decisions parties to an arbitral agreement are called upon to make. Generally, the “seat” refers to the city and the “law of the seat” refers to the seat’s legal jurisdiction (e.g. for an arbitration seated in Toronto, the law of the seat would be the Province of Ontario).

Continue Reading Top 3 Considerations for Selecting an Arbitral Seat

In order to protect the integrity of the arbitration process, arbitrators are generally found to be immune from civil liability arising from their role in an arbitration. Many institutional arbitration rules provide for a limitation of an arbitrator’s liability,[1] and courts have routinely held that arbitrators are immune from legal action with respect to acts performed by them in the exercise of their functions.

Continue Reading Understanding the Liability of Arbitrators

Delay is a common complaint of parties in international arbitration. Understandably, many parties would like to resolve their disputes efficiently and without spending an exorbitant amount of time or money. On the other hand, some parties find delay to be in their best interest at certain stages of dispute resolution, which brings truth to the amusing saying “one person’s delay is another person’s due process.”

Continue Reading Promoting Efficiency in International Arbitration: Changes made by arbitral institutions and rule-making bodies in 2016