Author(s):
Lauren Tomasich
Oct 26, 2023
Arbitration continues to gain popularity in commercial agreements across a variety of industries. With our Canadian Arbitration Blog, our team of practitioners across Canada provide practical insights and analysis into this dynamic area of law both domestically and internationally. We demystify the technicalities and delve into the workings of arbitration law while exploring emerging trends, landmark cases, and significant developments.
In the video below, Osler partner Lauren Tomasich outlines why parties must understand the law of arbitration and its unique processes and procedures.
Stay informed
Subscribe to receive new post notifications for the Canadian Arbitration Blog by email.
Subscribe now
Video transcript
LAUREN : Hi, I’m Lauren Tomasich, a partner in the Osler litigation group in Toronto and one of the key contacts for Osler’s domestic and international arbitration practice.
You may think of arbitration as a way of resolving disputes out of court. This is true at a high level, but a much deeper understanding is necessary to use arbitration effectively.
With Osler’s Canadian Arbitration blog on Osler.com we explore the nuances of arbitration with timely articles published regularly.
Let me give you a few examples of unique arbitration issues.
The first involves the interplay between arbitration and the courts. Canadian courts have consistently upheld the important policy consideration of staying court proceedings where parties have agreed in their contract to arbitrate.
This means that if a party starts litigation when there is an arbitration clause, the court will stay the litigation in favour of arbitration.
Perhaps that sounds straightforward, but it gives rise to all sorts of interesting considerations. Does the court, or the arbitrator decide whether the arbitrator has jurisdiction to hear the dispute? What happens if there are multiple contracts and not all of them contain an arbitration clause? What happens if there are multiple disputes and not all are governed by the arbitration clause? What about third-parties that are not party to the arbitration clause? What if you need injunctive relief from the court?
We tackle the latest developments around these arbitration issues and others that the courts regularly grapple with.
The conduct of an arbitration is also an important issue.
An often touted advantage to arbitration is the ability to select a decision maker. But what if the arbitration clause does not prescribe how the arbitrator is to be appointed and the parties cannot agree? Our blog explores case law that considers relevant factors that courts will apply to select an arbitrator if there is no mechanism in the clause – which is of course, something to be avoided at the outset. Our blog also talks about the importance of drafting robust arbitration clauses.
The conduct of an arbitration and the rules used to govern the arbitration is also a significant consideration. We report on the developments with institutional arbitration rules around the world, such as the International Chamber of Commerce, or the London Court of International Arbitration.
The same goes for domestic arbitration rules. Canadian arbitral institutions have rules specific to arbitrations between Canadian parties. For example, the ADR Institute of Canada Arbitration Rules comprehensively address domestic arbitration procedure. We keep tabs on how Canadian domestic rules are keeping pace with international arbitration norms.
Finally, many arbitrations, particularly in the domestic context are “ad hoc” meaning they are not administered by an institution and the parties along with the arbitrator craft rules to suit the dispute at hand. Our blog offers strategies and tactics to navigate arbitration procedure.
So, why is all of this important? Arbitration continues to gain popularity in commercial agreements across of variety of industries, particularly given packed court dockets.
Arbitration also facilitates enforceability in other jurisdictions. An arbitral award may actually be easier to enforce in another jurisdiction than a Canadian court judgment. It is also important to be mindful of recognition and enforcement considerations in Canadian jurisdictions when advising foreign clients.
These are just a few examples of why parties must understand the law of arbitration and its unique processes and procedures.
Osler’s Arbitration Blog is your go-to resource for all things arbitration related.
Our team of practitioners across Canada provide practical insights and analysis into this dynamic area of law.
We demystify the technicalities and delve into the workings of arbitration law, explore emerging trends, landmark cases, and significant developments as well as provide practical tips, strategies, and best practices.
Whether you are a legal professional, government official, business executive, or simply curious about this increasingly popular field, we look forward to sharing the latest content with you.