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Guide to Regional Arbitration (volume 5 - 2017)

Worth a Closer Look: North America

02 November 2016

The following providers are also all worth considering, for the right sort of case.

ADR CHAMBERS CANADA

What is it?

A private company made up of retired judges and experienced lawyers, based in Toronto.

How well-established is it?

It's been around since 1994, and, around the time of its 20th anniversary, was reporting a caseload of 17,000 arbitrations and 23,000 mediations a year. If those numbers make it sound big, it actually has an "active members" list of around 40 names.

How does it manage the work?

Neutrals are divided into "expert panels" which focus on the various types of disputes the centre handles, which are split fairly evenly between commercial and civil matters.

Who's on the neutrals list?

Among the judges, GAR readers will recognise names like Babak Barin and Barry Leon.

Why's it only "worth a closer look"

Its caseload to date has been fairly domestic.

Could that change?

One would think so.

On paper, Toronto has the makings of a perfect arbitral seat; it's a multicultural, international city – about half of its residents were born outside Canada – with good international connections. Above all, it's only a few hours from New York, but a lot cheaper when it comes to hotel and other space.

Toronto also has one of the world's nicest hearing centres: Arbitration Place, a purpose-built venue not dissimilar to Maxwell Chambers in Singapore. It is in the heart of Toronto's financial district.

Are the two connected?

Arbitration Place is an independent business with plenty of partners – including the ICC and LCIA. But ADR Chambers is among them, and its neutrals have conducted hearings there.

INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION (CPR)

Why's it worth keeping an eye on?

It's a long-established New York-based organisation established by the in-house legal community in the US in 1979 who wanted to find ways around the cost of US litigation. In those days it was called the Centre for Public Resources. It changed its name (though not its initials) in 2010, but it still has the same ties to the US in-house world.

Who are the people to know there?

It's now run by Bette Shifman, a former deputy secretary general of the Permanent Court of Arbitration and practice group manager at DLA Piper. She joined in 2013. The president is Noah Hanft, former general counsel of MasterCard.

Under Shifman it's been reinvigorated – and has begun initiatives such as a young lawyers' group.

Is it busy?

We don't know. It could be – but the CPR doesn't release its caseload statistics.

What does anecdotal evidence suggest?

GAR 100 firms use it – we know from talking to them – and regard it as credible. Some of its more unusual aspects get discussed at conferences – some favourably.

What are its unusual aspects?

The most striking is possibly the appellate option, which allows a party to appeal the case to essentially a new tribunal. People aren't always sure about that.

On a more positive note, the CPR is also known for its screened appointment process. This is a clever way to combat the moral hazard that could arise when parties are free to choose their own arbitrator: namely, that the arbitrator then panders to that side. Under the screened procedure, arbitrators are selected without knowing which side selected them. That proposal has also attracted a lot of attention, although few have managed to try it out.

What are its rules like generally?

The centre has only recently moved into case-administration.  They have a big focus on time: for example, they require the centre to approve any scheduling orders or extensions that would cause an award to be rendered more than a year after the formation of the panel. They also cap administrative fees at US$34,000. Other features are a mandatory pre-hearing conference that the parties must attend.

Have the rules been tested yet?

They're still fairly new, having come into force at the end of 2014. And, again, there's no way of knowing without access to the centre's stats.

Why's it not on the white list?

It's still a bit of an unknown quantity. People in New York appear still to think of it as something of an untried and untested option, in contrast to the ICDR, which is also on their doorstep (and now the ICC is in town too). It will have to find a way to combat that impression.