Day 1

- Reflective Paper –
o On any topic taken up during each day
o 1000 word essay
o Not just a description – your views
- Bullet points for arguments –
o Reasons
o Legal basis
o 1 page
o Email it to JW by end of the day on Day 4.
- Scenario –
o Sale of goods transaction
o Read the scenario today & choose
o Counsel & judge
o 5 min for arguments
- Discussion of procedural meeting tomorrow

- Forms of dispute resolution:

o Negotiation
 Parties discuss informally
 May make an amendment
 Resolved by parties themselves
o Dispute boards / expert determination
 Mostly common in construction
 Group of technical experts in formal groups – set out in the commercial
agreement, will be retained throughout the life of the project
 Will discuss the project, issues & deal with them before they become disputes
 Merger – resolving the price of share by an expert, which will be binding
o Mediation / conciliation
 Has a third party to mediate the negotiation
 Parties have to agree
 Minutes of settlement – a contract, binding.
 Control of the process less than that during negotiation / dispute board
o Adjudication
 ON – mandatory adjudication for construction disputes
 Fast track decision making process – to keep the payments flowing &
projects moving
 Give the parties a quick decision
 If parties want a detailed decision then they can review that later
 Involves a 3rd party decision maker
 Not final – parties have further recourse
 Stems out of a statute
o Arbitration
 Decision making by a 3rd party – sole / 3 person tribunal
 Parties must choose in advance
 Commercial arbitration mostly consensual
 Binding – enforceable under the NY Convention (NYC)
 o Litigation
 Better option for certain disputes
 Not preferable for international matters
- History
o Lex mercatoria:
 Uni droit
 CISG
o Commercial disputes connected to political disputes
o Peace Palace in Hague – Permanent Court of Arbitration (PCA) – intl disputes
involving States
o 1919 – London Court of International Arbitration
o International Chamber of Commerce – to support international businesses. Created
Incoterms.
 Created International Court of Arbitration – largest administrator of
arbitrations
 Described themselves as merchants of peace
 Based in Paris
o New York Convention
 1958
 One of the most successful treaties
 Each country party to the convention has to enforce arbitral award
 Court has obligation to refer the dispute to arbitration
o UNCITRAL Rules & Model Law
 1976
 Last revised in 2010
 Parties are free to choose these rules
 Ad hoc arbitration – doesn’t involve a presiding institution like the ICC
 Working group no. 2 – meets twice a year
 Model law can be adopted by countries
- ON law
o Model law adopted in Canada in 1986
o Revised in 2017 in ON
o International Commercial Arbitration Act, 2017
o NYC & Model Law – almost no difference. Model law is a detailed version of
responsibilities found in the NYC.
o No obligation in Model law. NYC is a treaty.
o Foreign arbitral awards – both domestic & international
- Courts & tribunals
o Authority doesn’t overlap – they’re concurrent, supportive relationship.
o Valid arbitration agreement – court must support the tribunal.
o Art 5 – no court shall intervene except where provided by the law.
o Art 8 – referral to arbitration – before making the first statement – unless court finds
agreement is null & void, inoperative or incapable of being performed. Court shall
refer – no other choice.
Arbitration can be commenced & award be made even while the matter is pending in
court.
o Art 9 – interim measures – parties may require urgent, interim measures of protection
– go to the court before or during arbitral proceedings
o Arbitral appointments
  If appointment procedure fails, any party can request the court to take
necessary measure for securing appointment of arbitrator.
 Necessary in case of ad-hoc arbitration if there’s no agreement.
o Arbitrator challenges – Art 13(15)
 In cases of conflict
 Disclosure / declaration may create possibility of challenge
o Assistance for evidence – Article 27
o Application for setting aside exclusive recourse against arbitral award – art 34:
 Court at the seat of the arbitration – country whose laws will apply, legal
home of arbitration.
 Seat provided in arbitration agreement.
o Article 36 – challenges to enforcement
o Article 16 –
 competence-competence – whether tribunal has capacity to determine its own
jurisdiction, objections to existence & validity of arbitration agreement
 separability – if contract is void, is arbitration clause invalid? No – can be
treated as independent of the other terms of contract. Decision by tribunal
that contract is null & void – will not derail the arbitration clause.
o Guerrilla tactics, due process paramilitary
o Emergency arbitrator
- Arbitration agreement
o Article 7 – in writing, or recorded by other means
o Clauses available in institutionalized models
- Pathological arbitration agreements:
o Failure to include the word ‘arbitration’ or meant it
o Creating vague prerequisites – “if they are unable to resolve their disputes they agree
to submit to arbitration”, requiring good faith efforts
o Heller v Uber
o Protected class, arbitration agreement entered into them will be null and void.
o Including name of arbitrator
o Specifying rare qualifications
o Creating unreasonable requirements for the process (eg. – timelines)
o Providing the entire procedure
o Failing to fill in the blanks
- Laws affecting arbitration agreement:
o Governing claimant’s capacity to conclude
o Law of the contract
o Mandatory laws affecting performance of contract
o Law of the seat
o Laws of places of enforcement
o Conflict of laws
o Laws of witnesses
o Laws of counsel
o Confidentiality / disclosure obligations
- Scenario
o Have one role in the first 3 and last 3 scenarios
o Role will either be counsel / tribunal – opposite in each

Day 2:
 Constituting the tribunal –
o One / three? – 1 will be more efficient, more capable of scheduling, smaller matter,
less expensive. 3 – more complex issues, larger cases.
o Each party nominates its own arbitrator. In the notice of arbitration, nomination of
arbitrator is also included. In response, respondent will include their own arbitrator. If
respondent refuses to participate, claimant may have to go to court to nominate an
arbitrator. Sole arbitrator – each party has to agree. Institutional Rules / National law
– appointment and time frame during which parties have to agree to choose the sole
arbitrator.
o Contested selections – “list procedure” – ad hoc, sole arbitrator – each side will
produce a list with a certain no. of arbitrators & exchange the list – procedure
involves striking and ranking – agree on no. of arbitrators that can be struck down.
Each party then ranks the remaining arbitrators. Lists are then compared – person
closest to the top is selected.
o ICC – national committees – local knowledge about who is appropriate.
Recommendation sent based on nationality.
o Better if the two arbitrators choose the chair – ensures that they work together.
o Nomination – ensures that party nominating them is heard, however, should not hold
ex parte communications. IBA Rules for Ethics for Arbitrators – identify narrow
exceptions for ex parte communications (constituting the tribunal).
o Award could be set aside if tribunal is found to be biased.
o Disclosure of any conflict should be made immediately.
 Arbitrator selection criteria –
o Professional qualifications
o Expertise
o Language
o Experience
o Nationality
o Availability
o Conflict of interests – IBA Rules – independence & impartiality
 Independence & impartiality:
o IBA guidelines on conflicts of interest
o Whether it gives rise to reasonable doubts in the eyes of a reasonable 3 rd party as to
impartial or independence of the arbitrator
o Challenges are highly strategic
o IBA’s 3 lists – red – gives rise to justifiable doubt (waivable – must disclose, can
serve if parties provide express consent) & non-waivable – must disclose, cannot
serve), orange – may give rise to justifiable doubt (must disclose, but may service
unless a party objects) & green – does not rise to justifiable doubt (disclosure not
required, may serve).
o Revision of approach by ICC in 2012 – greater requirements for disclosure. Multiple
nominations taken as a result.
o American Arbitration Association – ICDR is an international arm of the AAA.
 ICC Arbitration:
o Quicker to go through expedited arbitration – below $2m
o International Court of Arbitration – supervises tribunals & administers proceedings,
constitutes tribunals, award scrutiny
o Arbitral Tribunal – decision on merits, case management
 Mock scenario:
o Item 1:
 Inconsistency in language of the arbitration clause – ICC, UNCITRAL Rules
– resolved in favour of the ICC.
 Detailed pleading & document exchange proposed by claimant’s counsel.
Witness statement to be given in writing.
 Redfern schedule – requests, submissions and ruling on submissions. Takes
longer, more steps – but it’s not too long; having a detailed record helps
tribunal to be better informed.
 Respondent – unduly time consuming, would add costs.
 Art 25 – tribunal to proceed with as short a time as possible.
 Efficient and shorter process, will get all details & evidence.
 Parties to exchange detailed memorials with documents.
 Claimant bears the burden – should be able to provide witness and
documents
 IBA rules for exchange of documents – claimant relying on
documents to be produced
 Supposed to be a narrow & confined process
 Request for document to occur after both parties have exchanged memorials
 Discussion between the tribunal members on the prelim issues –
 Pleadings v. pleadings based on a plethora of documents
 DH – wants to go with the claimant’s approach
 PT – wants full opportunity + efficient – is in favour of respondent’s
approach but would defer to the decision of the chair
 DJ (chair) – parties take longer to produce memorial than pleadings.
Examine each party’s proposal for timing & memorial approach.
 Defer unless they consider item no. 6.
 Tribunal direction on item 1 - Workout respective timetables.
o Item 2:
 Expert evidence on L/C
 Claimant – accepted, manner in which they will be tendered / appointed is the
issue
 Respondent – not necessary, but if tribunal wants to, it can do so.
 Why is expert needed?
 Respondent’s core argument & counter claim – terms of LC were
impossible to comply with.
 Some terms have to be satisfied for the bank to release funds.
 If terms are reasonable / impossible – industry expert will be able to
tell.
 Can it absolve respondent of the liability?
 It’s the respondent’s entire case & counter claim – important to be
adduced.
 Tribunal – someone from the bank can just give evidence rather than an
expert?
 Response – bank will simply look at the terms and won’t be
independent enough to give a view.
 Respondent:
 Could be decided by the specialized Tribunal.
 Expert not necessary.
 If Tribunal thinks it needs assistance, can appoint its own expert.
  Less costly, more efficient.
 ICC Rule – Art 25 – allows parties to question the expert.
 Tribunal –
 Will ensure that each party has reasonable opportunity to present
their case
 If tribunal appoints its own expert, parties can appoint its own expert
evidence in response.
 3 experts instead of 1 tribunal expert?
 PT – it’s not a complex issue. Chair can appoint an expert rather than
have a battle of experts. German Arbitration Act allows for that.
 DJ – Party appointed experts preferred by civil jurisdiction lawyers
 DH – parties can bring their own experts but advisable for experts to
work together
 PT - ICC administered arbitration – experts need not be paid if
appointed by ICC - agrees with party appointed experts.
 Tribunal - Most efficient for each party to appoint its own experts, experts to
work together closely in accordance with guidelines for experts. Set a time by
which experts are to be identified. If parties can’t agree, tribunal to do it.
Joint opinion to be produced by experts in the area of disagreement.
o Length of the evidentiary hearing:
 Claimant – 7 hearing days
 Expert, counter-claim, witness (2 or 3 per side) – have enough days
booked – make advance appointments
 Different time zones
 Respondent – 2 days
 Tribunal will already have all the facts and evidence and documents
 Article 22 – both parties and tribunal to make the arbitration
expeditious in a competent manner
 DH – direct evidence / witness?
 IBA rules
 DJ – translation assistance?
 Respondent – will be required.
 Tribunal –
 Limit time and breaks
 Consider time zones
 Aim for 5 hearing days of in-person hearing – convert it to hearing
hours, may be wrapped up in 3.5 days
 Earlier considerations involved travel, accommodations, per diems
 Terms of reference –
o Set up the structure for arbitration
o Less common now to have TOR provide detailed procedure
o May or may not include complete list of issues – tribunal has to deal with every
single issue in detail.
o Memorial pleadings – claimant takes more time, prefers it.
o Agreed list of issues to be provided
 Written submissions
o Notice of arbitration, answer:
 Parties’ names, add & contact details
 Representatives’ ------------
  Description of dispute
 Statement of the relief sought & amounts
 Relevant agreements including arb agreement
 Arbitration specification and proposed arbitrator
 Proposal on place, applicable rules, language.
o Statements of case
 Pleadings or memorials?
 Common / civil law traditions
 When will evidence be presented
 Will parties exchange documents
 When will experts be engaged and when will they submit reports
 Will submissions be simultaneous (post-hearing brief – closing statements,
end of main evidentiary hearing, if they have agreed to cost shifting) or
responsive?
 How many rounds?
 Limits to arbitration –
o Matters that can’t be submitted – patents, trademarks, anti-trust, competition,
insolvency, securities, natural resources, corporate governance, family law disputes,
matters of public concern
o Copyrights are arbitrable in Canada – cartoon case law in Quebec
o US – whether the dispute is arbitrable?
o Other regions – arbitrability – issues that parties could not agree to.
 Multi-party dispute –
o Party consent
o Problem with tribunal constitution – Dutco
o Parent co. – cannot be added if not a party, can be added if it wants to and the parties
agree.
o Addition of parties –
 In case of 2 parties on one side – institution can appoint arbitrator on their
behalf
o Interconnected contracts, multi-party disputes
o Consolidation
o If there’s an evidentiary gap, tribunal is empowered to make an adverse assumption.
If a document is not provided, tribunal is free to make its observation in the reasons
that the party failed to provide the document.
Day 3 –

 Investor-State Arbitration:
o ISDS:
 Neutral proceedings
 Canadian-Venezuela gold mine scenario
 White Pines Project in ON – German company invested, terminated by the
govt by a legislation in 2018
 Mostly result in settlements
 ISDS allows foreign investor to sue the State directly in arbitration for
investment protection treaty entered into between home state and state in
which investment is made.
 Failure to provide “fair and equitable treatment” to the investor –
compensation has to be at FMV, national treatment, MFN treatment
 International company cannot be treated unfairly compared to local
companies
 Treaty is at state level – standing consent to arbitration.
 Independent tribunal is appointed
o Industries – green energy, mining, oil and gas, financial and insurance sectors
o Disputes – revocation of licences, termination of contract, change in environment
regulations, denial of justice before local courts
o Treaties – to encourage economic development & promote foreign development
o Perceived as inherently unfair and biased
o Nova Scotia v Bolivarian Republic of Venezuela - coal investment was not long term,
CISG not usually an investment.
o Protected party must be an investor, includes indirect investors – minority
shareholders.
o Treaty shopping not permissible – companies cannot restructure to gain benefit from
investment protections after the dispute arose
o Treaty planning is permissible – can use SPVs to benefit from investment protections.
Right can be eliminated if treaties have treaty benefit clauses.
o CETA – new tribunal system with an appellate system in it
o ICSID arbitration – national courts cannot interfere; award can be enforced in any
state party to the convention. Eg. - Russian expropriation – Crystal ex – Canada-Ven
Treaty, enforced in US.
 Ad-hoc arbitration + institutional arbitration – ad hoc arbitration but identify an appointing
authority – deals with only appointment related issues. Don’t have to worry about paying the
secretary, arbitrator fee etc. Won’t have to go to local court to figure it out.
o Institution can also serve as a stake-holder – they will take the deposits and dispense
fee as appropriate. Advisable in the scenario of ad-hoc arbitration since funds will be
coming in from all over the world.
o Cannot go for scrutiny if it is not entirely an institutional arbitration.
o Ontario legislation
o ICC just appoints authority – ICC will deal with challenges to arbitrators
o Hierarchy –
 UNCITRAL model law is national statute – applies to seat, courts & tribunals
and sets standards of procedure. Validity of agreement, conduct of
arbitration. Whether award will be enforceable or not. Article 18 – parties
will treat parties with equality & give full opportunity. Beyond that doesn’t
tell the parties much.
 Role of expert witnesses:
o Civil v common law procedural differences:
 Civil law – case is administered by the judge who determines how the inquiry
will proceed and asks lawyers for assistance in going through that process –
inquisitorial approach.
 Common law – each party and their counsel lay out their cases before the
judge and in the end a winner is declared – adversarial approach.
o Civil – judge will decide what expertise is needed and then appoint an expert in those
areas. Germany, Austria, France – judge can call upon panels of experts to assist
judges.
o Common law – party decides whether it wishes to deploy an expert. Expert will speak
for that particular party. Judge’s job (without assistance of expert) is to decide which
of those expert views should be accepted. Lawyers will pick the experts likely to
support their view (hired gun approach). Experts become mouth pieces of parties –
unsatisfactory approach.
o Efforts made in domestic laws to prevent expert partiality
o Issues in international arbitration – 90% are party-appointed.
o IBA Rules on Taking of Evidence, 1999 & CIArb Protocol 2007.
o If tribunal appoints its own experts, it has to be necessary.
o If contradicting position, all the Tribunal can do is pick one. Solution – limit the
differences.
o Proposed best practice directions:
 Identify disciplines
 Establish common list of questions
 Defer production of reports until factual evidence is available
 Identify areas of agreement and disagreement
 Produce individual reports on areas of disagreement only
 Produce reply expert reports that conduct a “figures as figures” analysis.
o To be done in the case management stage.
o Applicable law –
 Bringing in expert to prove the law
 Law chosen won’t be the only law. Also chose CISG in the mock scenario.
Contract will be performed in different jurisdictions. Different laws of
different jurisdictions will apply.
 Tribunals not too keen on having experts on law.
 The binding effect of an arbitration agreement concluded by an agent on behalf of a principal
involves questions of authority (that is, the agent’s ability to bind the principal to such
agreements) and allied questions of necessary form.87 Thus an ICC tribunal invited to
determine (p. 90) whether a principal was bound by an arbitration agreement concluded by its
agent distinguished between the law governing the arbitration agreement (in that case, the law
of the seat of the arbitration), the laws that governed the agent’s capacity to conclude an
arbitration agreement on behalf of the principal (the law of the principal’s registered office),
and the form in which such capacity should have been conferred on the agent (the law of the
jurisdiction in which the agreement between the agent and the principal was concluded).
 2.57  National laws feature substantial differences on questions of necessary form (that is,
whether the principal’s written authorisation is required) and content (that is, whether the
principal’s authorisation need expressly envisage the conclusion of an arbitration agreement).
For example, both Swiss and Austrian law require the principal expressly to authorise an
agent to enter into an arbitration agreement on its behalf in order for that principal to be
bound by such an agreement, but only Austrian law requires such express authorisation to be
 in writing.89 Under Italian,90 French,91 and German92 law, no particular form of authorisation is
required.
 Agency, equity, relationship between companies
Day 4:

 Confidentiality:
o Arbitration proceedings are private
o Many parties do not believe confidentiality is important
o Necessary on case-to-case basis
 What:
o Exchange of documents must be confidential – cannot be made public – implied
obligation can be excusable by made of an application in court proceedings (ON)
o US – bring an application to redact proprietary information – no deemed obligation
o Expert reports – could involve sensitive information
o Pleadings and other submissions – varies from case-to-case basis depending on the
parties
o Award – historically, confidential. Now changing – may be made public to share
analysis – learning opportunity,
o Fact of the arbitration – depends on parties.
 Who is obligated:
o Tribunal members – by accepting brief
o Administrators
o Counsels – by retainer
o Witnesses & experts – by parties/counsel presenting the witness
 How:
o National law – measures can be taken in courts to protect confidentiality
o Institutional rules – may only be restricted to Tribunal members
o Arbitration agreement – mention the what and the who
o Ad hoc proprietary agreement – address in case management conference – once
proceedings are over, draft obligation that confidentiality obligations will survive
termination of the proceedings.
 Exceptions:
o Waiver
o Set-aside, challenges to enforcement
o Public disclosure obligations
o Legitimate exercise of a legal right
 Proceedings:
o Tribunal receives documents over a period of time
o Openings can be circulated a week or so in advance
o Procedural meetings – timelines dedicated to openings, fact witnesses, expert
witnesses, closing submissions (oral / written).
o Chess clock – there’s an assumption that the parties will have equal time for the
presentation of the case. Not a strict rule – can be agreed upon during procedural
meetings.
o Extensive interventions, technical issues – time will be adjusted
o Lead counsel will be asked to keep time, compare & reconcile it at the end of each
hearing.
 o As the hearing days go by, parties will get a sense of how to fit their arguments in the
allocated time.
o Interpretation requirements – simultaneous / consecutive – how will they be
approved? Reliability of translators. Must be vetted and approved. Challenges to
interpreters must be resolved in procedural hearings.
o Virtual hearings – 360 degree cams to ensure witness isn’t being prompted
 Med-arb and arb-med:
o A combination of mediation and arbitration.
 Med first and then arb if no settlement
 Arb first and then arb may act as mediator in final push for settlement.
 Arb-med-arb where arb gets underway, parties engage in mediation during
evidence and then revert to arb.
o Best of both worlds, with the scaffolding of arb process
o Saves cost – arbitrator plays dual role
o Settlement award can be easily enforced.
o Concerns:
 Concessions made to the other side in cloak of settlement process
 Procedural fairness concerns
 Good arbitrator (remaining impartial) v good mediator (spending more time
with parties)– what to prioritise?
 Separating without prejudice parts from settlement privileges
 Could potentially lead to challenge to award
o Can be addressed by choosing arb-med
 Draft award and then mediate
o Flexibility, rapport building skills required in the arbitrator
o Med-arb could be strategy of embedding mediation clause in arbitration.
o Could also be structured as an escalation clause – negotiation, mediation and then
arbitration.
o Ideal to choose arbitrators who can make pro-mediation orders, allowing arbitration
proceedings to order stays for mediation and cost orders (to what extent should
tribunal take account of mediation matters – did one party unreasonably refuse to
take part in settlement / negotiation / mediation proceedings?).
o Institutional basis:
 CIETAC Rules (A 47), Swiss Chamber Arb Rules (A 15.8)
 Requires consent of both parties
 Parties waive their right to raise challenges on procedural basis – may not be
really effective
 Singapore approach – SIAC and SIMC proposed joint protocol on a arb-med-
arb clause
 Challenging awards:
o Model law article 34
o Incapacity of party
o Not notified
o Dispute outside the scope of agreement
o Composition not as per agreement
o Contrary to law of the seat:
 Subject matter not arbitrable
 Award in conflict with public policy of arbitration
 Jurisdiction challenges:
 o Competence-competence – if tribunal passes a partial award on jurisdiction, can be
challenged under A 34
o Cargill 2011 – no deference is owed to tribunal – standard of review is correctness
o Whether new evidence can be submitted – not generally permitted as it is not a trial
de novo (Russia v Luxtona 2019 following Cargill). Expert evidence about Russian
law not allowed to be admitted.
o Public policy challenge – fraud (Boardwalk v Maalouf, 1992) – gambling debts are
unenforceable in Canada – contrary to law but not contrary to international law and
conception of essential justice and morality. Better to give legal remedy than have the
claimant collect award in “traditional way”.
 Enforcement:
o Get the award recognized in form of judgement by local courts
o NY Convention Article V, Model Law Articles 35-36
o Could potentially lead to re-litigation on same issues
o Provision of security to obtain a stay or adjournment – Art 36(2)
o India:
 Ayyasamy (2017) – general fraud claims are arbitrable – serious fraud claims
aren’t
 BALCO (2012) – arbitral awards cannot be reviewed on merits
 International public policy – inconsistent judgements
 Tata Docomo – affect on domestic banking not contrary to public
policy – Tata allowed to settle with Docomo
 NAFED Alimenta – failure to deliver product. Because NAFED
never secured export license, allowing enforcement of Alimenta’s
order would be contrary to public policy