The Lawyers Weekly - September 17, 2010

THE LAWYERS WEEKLY
September 17, 2010 | 13

BARRY
LEON
&ANDREW
MCDOUGALL

Many arbitrations in Canada and around the world have been conducted under the 1976 United Nations Commission on International Trade Law ( UNCITRAL) Arbitration Rules. These popular rules were updated on Aug. 15 and the revised rules apply in arbitration agreements made after that date.

While the changes are not revolutionary, they are significant for those drafting arbitration clauses and for counsel in ad hoc arbitrations. The changes should also influence other international and domestic arbitration rules.

A goal of UNCITRAL is to
remove obstacles to international
trade. UNCITRAL’s arbitration
rules were developed through
extensive consultation and
adopted by the United Nations
General Assembly. UNCITRAL
wanted to create a comprehen-
sive set of arbitration rules that
were unbiased toward either civil
or common law, or to any nation’s
domestic laws. It wanted rules
for ad hoc arbitration that would
be “acceptable to countries with
different legal, social and eco-
nomic systems.”
As the past 34 years have
shown, the UNCITRAL rules
had great success. They have
been used in a wide range of dis-
putes, including ad hoc commer-
cial arbitration, investor-state
disputes and state-to-state dis-
putes. While the extent of use of
the rules for commercial arbitra-
tion is unknown, United Nations’
statistics show that by 2009,
over 25 per cent of investment
treaty claims were brought
under the rules.

TRAL’s website: www.uncitral.org
Changes to the rules are varied.

The change that may prove the most important is the change to the core mandate of the arbitral tribunal. The former rules empowered the tribunal to “ conduct the arbitration in such manner as it considers appropriate,

provided that the parties are
treated with equality and...each
party is given a full opportunity of
presenting his case.” The revised
rules add a second sentence to
that mandate: “The tribu-
nal, in exercising its dis-
cretion, shall conduct
the proceedings so as
to avoid unneces-
sary delay and
expense and to
provide a fair and
efficient process
for resolving the
parties’ dispute.”
There is a
pervasive move
in international
arbitration today
driven by con-
cerns of the users
of international
arbitration to
increase efficiency and
reduce the cost and time
of arbitration. In that con-
text, this change may motivate
and give arbitrators more tools to
bring greater efficiency and speed
to proceedings.
M
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.

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K
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T
S
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/
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P
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G

Other changes are less fundamental but serve the efficiency goal. For example, it can be expensive and difficult to serve documents personally. This is exacerbated in international arbitration where parties are often located on opposite sides of the globe. The revised rules simplify the process by allowing service “by any means of communication that provides or allows for a record of its transmission,” including electronic communication such as e-mail. Ontario’s International Commercial Arbitration Act does not have this innovation.

The rules have never precluded
recourse to the courts (appeal and
review). The absence of any pre-
clusion of recourse—contrary to
most modern international arbi-
tration rules—continues. How-
ever, the rules now include a
model arbitration clause, with an
option to waive recourse to the
courts. In Ontario, there is author-
ity that even a review can be pre-
cluded by agreement.

Barry Leon and Andrew
McDougall are partners in the
International Arbitration Group
at Perley-Robertson, Hill &
McDougall LLP. They primarily
represent and advise parties as
counsel in international arbitra-
tion, and periodically serve as
international arbitrators. Barry
also serves as an arbitrator and
mediator with ADR Chambers in
Ottawa and Toronto.

Class actions often stall over insignificant disputes

Class
Continued From Page 11
the prosecution of consumer
claims, but the CPA could be
amended to permit business
parties to include in their stan-
dard sale terms a set of arbitra-
tion rules that the Act would
prescribe in order to offer con-
sumers a cost-effective and
timely method of resolving dis-
putes. The CPA could also pro-
vide arbitrators with the power
to consolidate consumer arbi-
trations involving common
facts.