e-Court - Online Justice now available in Canada

Arbitration In Canada - Choosing an Arbitrator

The first thing to consider is whether the case is best handled by one or three arbitrators. This evaluation should take place regardless of whether the arbitration agreement already specifies a number. It may well be that both sides will agree that while the arbitration agreement provided for three arbitrators, the matter is one in which a single arbitrator will be sufficient. There is much to be said for a single arbitrator, including lower cost, efficiency and ease of coordinating dates and hearing times. A single arbitrator may also be prepared to make a hard decision without his or her conclusion having to be softened or watered down in order to please the majority. On the other hand, there is a danger, particularly in large, complex cases, and in international cases, that if the single arbitrator gets it wrong there is no appeal. For this reason, as well as for cultural or business sensitivities, many international arbitrations have three arbitrators.

Black letter law vs. equity and fairness

Opinionated Individualist vs. Consensus builder

Consummate Insider vs. Competent but Unknown

Old War Horse vs. Young Rising Star

Judgment The skills brought to an arbitration should centre around the ability to decide the dispute fairly, in a cost effective manner, based on the facts and law as presented. The attribute of �judgment� goes beyond simply having an open and balanced mind to the issues. It means the proven ability to decide complex legal and factual issues correctly. It requires an ability to focus on the real issues and decide the matter in accordance with the appropriate law. In some cases, the ability to properly decide a matter may come from experience in the particular field at issue, (for example the oil and gas industry), or it may come from experience in a particular area of law (such as investor/state arbitration). In other cases the ability to properly decide a matter may come from an individual�s aptitude and general experience in deciding international commercial arbitration cases. However it is attained, this ability is the primary attribute that should be investigated when choosing an arbitrator.

Personality and Character It is important that the arbitrator have what has been referred to as �gravitas� or �presence�. That is, the ability to command respect from the co-arbitrators, counsel, witnesses and the parties. The candidate must also have a demonstrated track record for diligence, not only in organizing and conducting hearings but also in turning out the final written award. Combined with diligence is the ability to manage a caseload and in some circumstances, to be able to say no to new assignments when they interfere with present ones.

Checklist regarding Personal Attributes

1.a good understanding of the arbitral process;

2.an understanding of the commercial matter in dispute;

3.an ability to listen, assess the credibility of witnesses, and the weight of their oral evidence, and to render decisions in accordance with the applicable law;

4.the capability to act as a leader and manage the arbitral process;

5.the ability to clearly and decisively deal with issues during the arbitral proceedings;

6.the ability to act with fairness, civility and courtesy;

7.an appreciation for the cost of the process and the commitment to render a decision in a timely manner;

8.the ability to interact with the parties, counsel and co-arbitrators;

9.an understanding that the job of an arbitrator is to turn out an enforceable award following a process in which the parties, regardless of the result, were all treated fairly.

e-Court Escrow Fees

Arbitration In Canada - Choosing an Arbitrator

TOPICS:

Endorsements ( 1/2000 + ):

Features Gallery

Company Overview

Contact Us