Beverley McLachlin, the Chief
Justice of the Supreme Court of
Canada, has expressed the view:
“The trend is clear: fewer and fewer
construction cases are reaching the
courts where the law is developed.
Increasingly, instead of being
resolved by judges, construction
disputes are being sent to media-
tion, arbitration, or other forms of
alternative dispute resolution.”
Similarly, in the United States,
U.S. Supreme Court Justice Anthony
Kennedy recently told reporters at a
legal conference that his court’s
docket is oriented more heavily
toward criminal and First Amend-
ment cases, and that “a lot of big civil
cases are going to arbitration.”
HARVEY
KIRSH
However, despite what appears
to be a trend, much has also been
written about the shortcomings of
arbitration. The College of Commercial Arbitrators (CCA) undertook a detailed study of arbitration, and late last year produced its
landmark booklet, Protocols for
Expeditious, Cost-Effective Commercial Arbitration.
Essentially, the protocols
observed that trial practices were
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being imported into the arbitration
process and that arbitration was
beginning to look just like litigation.
The editors of the protocols
concluded that lengthy discovery, excessive claims for document production, multiple
depositions of witnesses and
numerous motions contribute
to greater expense and delays in
the arbitration process. The primary recommendation was that
arbitrators “must aggressively
manage the process from day
one of their appointment.” The
notion of “control,” particularly
over the discovery process and
the schedule, was paramount
among their recommendations.
Partly in response to the CCA
protocols, JAMS (which provides
alternative dispute resolution services internationally, and which
will soon be opening an ADR
Resolution Centre in Toronto) has
introduced its own “
Recommended Arbitration Discovery
Protocols,” which permit the parties to craft a process that is
intended to determine the appropriate scope of arbitration discovery and to seek to achieve an efficient, cost-effective process, while
affording the parties a fair opportunity to be heard.
The JAMS guidelines also
address other procedural matters, which in terms of delay and
extra expense, may impact upon
the discovery process in arbitration, including, for example, balancing the merits of dispositive
motions and requests for
adjournments against the legitimate needs of the parties.
Muscular arbitration
At its recent annual meeting,
the CCA characterized the con-
trolled case-management tech-
nique as “muscular arbitration.” By
contrast, however, a colleague
recently gave an account of an
arbitration where both he and the
opposing counsel, as well as the
arbitral panel, were content to
proceed at a leisurely pace. In
response to my comment about
muscular arbitration, he humor-
ously coined the countervailing
term “flaccid arbitration,” stat-
ing that, if that is what the par-
ties want, then the arbitrators
should respect and accommo-
date that approach.
Book Features
• Provides a unique synthesis of two areas of IP law – patents and
trade-marks – as they apply to software protection
• Discusses a myriad of issues involved in patenting or
trademarking software, both in Canada and internationally (the
U.S., U.K., Europe and Japan)
• Provides a thorough analysis of the statutory framework, case
law, and application of international conventions and treaties, as
they relate to trade-marks and patents for software
• This book is the first in a two-part series on software IP. The
second book discusses copyrights for software and will be
published in 2012
Harvey Kirsh is an arbitrator and
mediator with the Global Engineering and Construction Group of
JAMS, the largest private provider
of alternative dispute resolution
services in the world.
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Canada Inc. All rights reserved.
legislation. An approach where all
Canadian statutes on ICA are the
same, will allow the nation to
speak with a uniform voice. Quebec is in the midst of tabling legislation to reform its code of civil
procedure, which houses most of
Quebec’s ICA legislation. There
appears no better time for the rest
of Canada to do the same and
UNCITRAL’s 2006 amendments
is an excellent starting point.
But whether Canada chooses
to adopt these amendments is less
important than taking a uniform
approach to updating our legisla-
tion. Canada has excellent resour-
ces in the form of ICA practition-
ers, academics, government
advisors and a strong international
business community. We should
draw on these resources to draft
legislation that reflects ICA’s cur-
rent and future directions. Canada
is well placed to lead the world in
ICA and it is a shame not to. n
Unify
Continued From Page 13
Canada well placed to lead
Another innovation is a comprehensive approach to interim
measures, which are temporary
measures that arbitrators may
order to safeguard the process and
party rights. Before this proposed
amendment, dubiety over the scope
of measures led to diverging views
on not only the scope of allowable
measures but even the authority to
issue and to enforce them. The
amendment to this provision is an
attempt to lay the matter to rest.
Now is a good time for Canada
to rethink and update its ICA
Anthony Daimsis teaches international commercial arbitration,
international sales law and contracts in the common law section of
the University of Ottawa’s faculty
of law and is a member of the faculty’s international law group. He
also supervises its Vis and Jessup
Moot court teams.
