On-Demand Seminar: International And Domestic Arbitration: An Effective Option For Dispute Resolution (Video)

On Sept. 20, our arbitration experts held a seminar in Montréal to share their opinions on the latest developments and opportunities in the world of arbitration:

Current trends in domestic and international arbitration The growth of investment treaties Third-party funding and costs associated with arbitration CLE Credits

This seminar counts for up to 2 hours of CLE credit under the rules of the Barreau du Québec.

Video

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Full transcript

JOËLLE BOISVERT, Managing Partner Gowling WLG - Montréal

Je me présente. Joëlle Boisvert. Je suis l'associée directrice du bureau de Montréal de Gowling WLG. Ce n'est pas à ce titre ce matin que je vous parlerai mais à titre de modératrice et d'avocate qui pratique en litige et qui pratique aussi, particulièrement, en arbitrage.

While we're in Montreal and we could have this conversation in French for the next hour and a half, we've got very significant and important guests who are joining us today so that we can talk about international arbitration and the international scope of arbitration, and we will make the presentation in English.

I am joined by Tom Price, my partner from our London and Birmingham offices in the UK. Tom is a very well-known and experienced practitioner in the arbitration field with over 20 years of experience in numerous arbitration centres around the world. He spends much of his time acting on behalf of clients in the energy and natural resources sectors, and of course his clients range from state-owned industry to owner-managed businesses and individuals. As you may know, Gowlings, as it was then called, joined Wragge Lawrence Graham in February of 2016, so we've celebrated a year of our combination, and we are very happy that we combined with the Wragge Lawrence Graham based in Europe and in the UK with offices around the globe, because we are now a law firm with 1,400 professionals around the globe in ten countries and 18 cities. This provides us with the opportunity to have a better understanding of what's going on around this big planet and join our forces and our expertise with that of our colleagues from outside of Canada. Tom is a colleague with whom we've developed relationships in the last year. Our discussions with Wragge Lawrence Graham of course started before February 2016, but our combination is confirmed since then, and the objective that we've had in Canada is to ensure that we have an alignment with the expertise of our professionals in other offices so that we are able to address issues for Canadian companies, Quebec companies, that have repercussions outside of our borders. We all know that life no longer is dealt with within borders. Any business that has activities, deals with businesses from around the world. So the fact that we are now an international firm enables us to address those issues with a broad understanding of the topics, issues and problems. So Tom is joining us, and I'll explain how we'll proceed.

I also want to present to all of you another of our special guests this morning, and we're very happy to have Tania Sulan join us. Why? Because she will be speaking about something which we've not heard a lot I think in Canada, which is third party funding for arbitration proceedings, and this is going on - this has started elsewhere in the world - and we thought it would be relevant for people in the business world, whether it's in-house counsels or people involved in business transactions, to have an understand of what's going on with respect to third party funding pertaining to international arbitration. Tania has a decade of experience in third party litigation funding, and before that, experience as a commercial litigator in Sydney, Australia, and then in London. She is the Chief Investment Officer at Bentham IMF, and I will ask her later to tell us what Bentham IMF stands for and what it does. She is, in our view, at the forefront of introducing to the Canadian market the third party funding principles that have been successfully started elsewhere around the planet by Bentham. To this end, Tania was responsible for the arrival of Bentham in Australia at one point, and she'll be able to explain to us what Bentham is all about and what third party funding is.

So that's basically the presentation of those who are here today. The agenda is as follows. First of all, we expect to be done by five to ten, so that you are able to deal with your other obligations today. We will try and stick with the time. If you need to leave earlier, we understand, and please feel free to do so. We will not be offended. We understand that you have other obligations, and we are very happy and grateful that you have joined us this morning.

I will ask Tom to provide you with an overview pertaining to international arbitration and the latest trends. Tom's presentation will be around 25 or 30 minutes, and it will be followed by my small input with respect to the perspective from Quebec. I like to say that practising in Quebec sometimes is not very different than practising around the world. In arbitration, it is true. There are some slight tweaks and comments that I can make for Quebec purposes, but the objective is to talk about international arbitration and not for this talk to be about Quebec arbitration as provided for by our rules, but I'll raise some issues on that so that we can maybe link international arbitration with what's going on in Quebec on that front.

Then we'll talk about the growth and impact of third party funding. I will ask Tania to talk about third party funding, what it is, and then I will ask Tom the lawyer's perspective and what he sees in the market with respect to the third party funding of arbitration. Finally, briefly we'll touch on the impact and growth of investment treaties with respect to arbitration. That part should last approximately five minutes.

Our suggestion would be that questions - there are two options, questions at the end or questions throughout the presentation. I think we should be agile with this. We have a small group around the table, and while this is a presentation which will be done by mostly Tom and Tania, we welcome your views and your questions, if needed, throughout the presentation so that this can be a more conversation-type presentation if you'd like - but that's your choice. So that's what I suggest.

What we wanted to do before we started the presentation and my questions to Tom about international arbitration trends and latest trends is maybe just briefly - we don't want to put you on the spot - but we'd like to have a sense of the audience's knowledge pertaining to international arbitration, so I'll start the conversation over questions like this. My understanding from the list of attendees and those who are present is that you are mostly in-house counsels, within companies that have activities in Quebec - am I correct? Do we have a business, no lawyer, everyone's an attorney, an in-house counsel in the room?

AUDIENCE MEMBER

I'm a lawyer with Reed Commercial Group in infrastructure at SNC-Lavalin.

JOËLLE BOISVERT

Okay, so...

AUDIENCE MEMBER

California lawyer.

JOËLLE BOISVERT

Okay. Well, that's good. That's a lawyer.

(Audience laughter)

JOËLLE BOISVERT

So, just briefly, by show of hands, who has been involved in the past in an internal arbitration dispute for his or her company? Okay. And was it governed by, for instance, the ICC rules or other rules?

AUDIENCE MEMBER

Quebec.

JOËLLE BOISVERT

Quebec rules.

AUDIENCE MEMBER

ICC.

AUDIENCE MEMBER

AAA.

JOËLLE BOISVERT

AAA. (inaudible).

AUDIENCE MEMBER

Quebec.

JOËLLE BOISVERT

Quebec. Okay.

AUDIENCE MEMBER

(inaudible)

JOËLLE BOISVERT

Okay.

TOM PRICE:

That's good (inaudible).

JOËLLE BOISVERT

Okay, does that give you a sense? Okay. Well, then what I suggest is that we start, and, Tom, maybe even though everyone - most of you - understand and have been involved most probably in international arbitration, in order to have a successful conversation about the topics, I would ask Tom to start us off with maybe the big answer - the big question, I'm sorry - which is what is international arbitration? What does it stand for? And please, Tom, take us through your views on that.

TOM PRICE, Partner Birmingham, United Kingdom

Okay. Well, Joëlle, thank you very much for the kind words of introduction, and thank you for inviting me to come and...

...address you today in Montreal. I do apologize I can't deliver this in French, but I think it would be painful for everybody, if indeed it was possible at all.

We want to make this interactive, or at least interactive between Joëlle and myself in relation to sort of having a bit of a dialogue rather than me just doing a presentation. But there are some slides which hopefully give it a little bit of structure.

Down to basics: what is international arbitration? Well, it is a method of private, binding and enforceable dispute resolution chosen by the parties as an alternative to the national courts. Each of those components is really important, and in a sense some of them give rise to some of the advantages of arbitration. The fact that it is private, that is one of the key points in relation to arbitration as opposed to the national courts. The fact that it's enforceable, it actually is effectively the parallel to court proceedings.

I think the most important thing, though, about arbitration is that it's the autonomy of the parties that is really crucial, and this is really why arbitration I think is growing in popularity because the parties often want, when they know that there are going to be disputes that might arise in relation to that project, but rather than being subject to the vagaries of a national court which they may be unfamiliar with, they can at least agree at the outset that they will have a process which they're going to be able to have some buy-in to, that they'll have some input into it, the process, and into the choice of the arbitrators.

That's another really important aspect of...