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Guide To Regional Arbitration (volume 4 - 2016)

Ones to Watch: North America

03 November 2015

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.

So it has a huge panel of neutrals then?

Actually, no. Its “most active members” list comprises 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 “one to watch”?

Compared to the United States, Canada is less established as a seat. Toronto isn’t necessarily the first city you think of when hear the word “arbitration”, yet...

Yet?

On paper, Toronto has the makings of a perfect arbitral seat. A truly multicultural, international city – about half of its residents were born outside Canada – it is well connected internationally with direct flights to every major business centre in the Americas, Europe, Asia and the Middle East. It’s particularly convenient from New York, and offers much cheaper hotel space.

Added to this, it’s home to Arbitration Place, a purpose-built hearing venue with arbitrators’ offices in the same vein as Maxwell Chambers in Singapore, located in the heart of Toronto’s financial district.

Are the two connected?

Yes, ADR Chambers is on Arbitration Place’s list of partners, along with the LCIA and ICC. ADR Chambers neutrals conduct their 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 brand, established by a group of general counsel in 1979 to look for ways to get around the cost of US litigation. It still has a big audience among in-house departments at major corporations.

It used to be known as the Centre for Public Resources, and changed its name around the beginning of this decade.

It’s very proactive in the US and international communities, with some experienced and well-respected names on board.

Which names?

Bette Shifman, a former deputy secretary general of the Permanent Court of Arbitration and practice group manager at DLA Piper, joined as a vice president, director of publications and special counsel, in 2013. Former general counsel of MasterCard Noah Hanft became CPR’s president in 2014.

Recent years have also seen a new steering committee appointed for the centre’s young lawyers group, the arrival of a new vice president of dispute resolution services, and additions to its executive board. So it’s very much expanding.

Sounds like business is good.

It might well be, but the CPR doesn’t release its caseload statistics, so it’s impossible to tell.

What do we know?

GAR 100 firms use it, and take it seriously.

It’s also very committed to raising its international profile, and is partnering with some big-name institutions around the world. In 2014, these included the UNCITRAL Regional Centre Asia-Pacific, with which it helped stage a regional summit on mediation in New Delhi; CAMARB on mediation and arbitration events in Brazil; and the Milan Chamber of Arbitration and London’s CEDR in joint promotion agreements.

It’s also held numerous events to promote its new international rules.

What’s in the rules?

They relate to CPR-administered proceedings. This is comparatively new territory for the centre, which previously favoured non-administered dispute resolution. They set out to address what the centre calls the three main criticisms of international arbitration, regarding time, cost and complexity of proceedings

The rules 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, and cap administrative fees at US$34,000.

They also mandate a pre-hearing conference between the parties and offer them flexibility to oversee disclosure, and provide tribunals with sets of guidelines aimed at “streamlining an otherwise complex arbitration.”

Is that the main idea behind the new rules?

Yes, the drafting committee wanted to “explicitly address the three main criticisms of international arbitration, regarding time, cost and complexity of proceedings.”

They also included a key innovation.

What’s that?

The rules also offer parties the use of a “screened” appointment procedure for arbitrators, whereby arbitrators are appointed without knowing which party selected them.

Is that an attractive option?

Well, the fairness of the party-appointment process is always up for debate: a GAR Live conference in London in 2015 had a heated discussion on whether it shows true arbitrator impartiality to be a “myth”. Screened appointments are one way to reassure all parties that they can have a fair hearing; the CPR appears to be the only centre to have considered this in its rulemaking.

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.