The Arbitration Alternative

The growing complexity and pace of today’s global business environment often result in contentious situations. Because of the time and cost which may be required to resolve these disputes in court, identifying and implementing alternative dispute resolution processes - such as arbitration - has become an increasingly popular strategy. Arbitration is now widely recognized as the most effective and appropriate resolution process for many types of business disputes, particularly when the parties involved want to avoid going to court.

• Arbitration is ideally suited to resolve international business disputes. An agreement to arbitrate means neither party gets “the home court advantage”. The parties choose a neutral arbitrator to decide their case in a neutral forum according to neutral rules of procedure. International arbitration awards can be enforced around the world more easily than the judgments of national courts, because of a network of international treaties.
• Where a foreign investor receives discriminatory or unfair treatment at the hands of a government or government entity, the aggrieved investor may have a direct personal remedy to seek compensation through an investor-state arbitration, under NAFTA or an applicable bilateral investment treaty. Presenting such claims to an independent investor-state arbitral tribunal may be preferable to having to establish a basis for recovery under the offending state’s laws, through the same state’s court system.
• Arbitration also can be an appropriate alternative for resolving commercial disputes between Canadian businesses. Arbitration has the potential to be faster, less expensive, more private and more final than court proceedings, and allows the parties to choose the arbitrator who will “judge” their case.

But to achieve the potential benefits of arbitration, right from the outset commercial parties need the advice and guidance of lawyers who have extensive commercial or investor-state arbitration experience. They need counsel who know how to exploit the differences between litigation and arbitration and how to avoid arbitration pitfalls.

BLG Knows Commercial and Investor-State Arbitration

BLG’s Commercial Arbitration Group is a national team of professionals with active arbitration practices. Group members appear as counsel in commercial arbitrations across Canada and abroad. They have advised and represented parties to investor-state arbitrations before tribunals and reviewing courts. Some members hold national and internationally recognized arbitration accreditations, and are ranked among the best arbitration lawyers in the world. The Group provides services in English and French, and practices in both common law and civil law environments.

The Group’s roster reflects the diversity of our arbitration practice and covers a wide spectrum of backgrounds and experience, including industry-specific experience. Group members play an active role in leading national and international arbitral institutions, teach at university law schools, publish in arbitration journals and frequently speak on arbitration subjects at domestic and international conferences.

A Complete Range of Arbitration Services

The Group’s services include:

• drafting and reviewing arbitration clauses and other dispute resolution agreements
• advice on creative dispute resolution alternatives
• assistance in selecting and appointing arbitrators
• choosing appropriate arbitration rules of procedure
• advice concerning the rules and processes of arbitral institutions such as the ICC, LCIA, ICDR, AAA, BCICAC, ADRIC and others
• effectively presenting written and oral evidence before arbitral tribunals
• counsel in domestic and international commercial disputes
• enforcing arbitration awards
• assisting foreign parties and their counsel in gathering evidence in Canada
• advice and counsel concerning investor-state claims under NAFTA and bilateral investment treaties

For a more detailed description of our services and representative examples of the work we have done for our clients, please refer to our Commercial Arbitration Group brochure.

Making Commercial Arbitration Work

• A successful experience with commercial arbitration begins with the drafting of an appropriate arbitration agreement. Although the final product is often a concise, simple clause in a complex business deal, every phrase in that clause should be chosen with care, to reflect business priorities and procedural objectives. Our lawyers are specifically trained to draft dispute resolution agreements, and often assist our business lawyers and corporate counsel to review or revise such agreements.
• Advancing a claim for compensation against a sovereign government under NAFTA or a bilateral investment treaty can be both daunting and expensive. Many such claims do not succeed, or win benefits that are dwarfed by the costs incurred to achieve them. The first step is to obtain an assessment based on sound judgment and objective advice from experienced business and dispute resolution lawyers.
• It is equally important to appoint an appropriate arbitrator. Members of our Commercial Arbitration Group are active in leading Canadian and international arbitration organizations, and have an extensive network of contacts to assist in selecting the right arbitrator for each case, large or small.
• When an arbitration begins, whether it is a complex case involving huge sums of money, or a simple case involving a small amount, there is no substitute for having arbitration counsel who possess the experience and knowledge to handle the case effectively. Whether it is a commercial arbitration or investor-state arbitration, BLG lawyers can serve as your counsel in proceedings almost anywhere in the world. We have represented Canadian companies at hearings in Canada, the United States, Europe and Asia, sometimes without local legal assistance and sometimes as the trusted “quarterbacks” of a multinational legal team.

A Proven Track Record in Commercial and Investor-State Arbitration Matters

Acting as counsel in arbitration matters requires special skills and knowledge. The proficiency of BLG’s Commercial Arbitration Group is enhanced by its international experience, the diversity of its industry experience and its ongoing commitment to professional excellence.

BLG lawyers were part of a team of advisors involved in establishing the present investor-state arbitration process under Chapter 11 of NAFTA, and have actively participated as counsel in numerous investor-state arbitration processes. BLG has acted as counsel in most of the Canadian court challenges to awards made by NAFTA tribunals.

Presenting Your Case Anywhere in the World

Our lawyers appear as counsel for our clients in arbitrations not only in Canada, but also in many different parts of the world. Here are a few recent examples:
BLG represented an importer of products from China in an international arbitration in Hong Kong, resulting in recovery of losses caused by the delivery of defective goods.

• BLG represented a Canadian bank in an international arbitration in London arising out of the purchase of a bank subsidiary, resulting in recovery of substantial amounts by the purchaser.
• BLG represented a Canadian software developer in an international arbitration in Ohio, to defend a claim for substantial damages made under a software licensing and development agreement, resulting in an award for a much smaller sum than what was claimed.
• BLG represented a Canadian based energy trading enterprise in international arbitration proceedings in Oregon, resulting in the recovery of substantial sums due under a long-term power purchase and sales agreement.

Knowing Your Industry

Because we are part of a national firm with a broad practice reach, we can draw on extensive industry expertise. In addition to cases such as those mentioned above, involving import/export business, banking, technology and electrical energy, we have also handled major cases for clients involving many other industries, including:

• Aerospace – BLG acts as counsel in an international arbitration involving multi-million dollar claims arising from malfunctioning communications satellites.
• Automotive – BLG acts as counsel on numerous arbitrations concerning commercial disputes associated with the automotive industry and automobile dealerships, including NADAP arbitrations and appeals.
• Construction and Engineering – BLG lawyers have appeared as counsel throughout Canada and abroad in complex arbitrations to resolve disputes concerning such matters as chemical plants, pulp mills and infrastructure projects.
• Insurance and Reinsurance – BLG frequently acts as counsel in arbitration proceedings involving insurance and reinsurance issues.
• Mining and Forestry – We have had extensive experience in domestic and international disputes relating to the forestry and mining industries.
• Oil and Gas – BLG has acted as counsel in numerous oil and gas industry disputes, including major claims relating to oil sands projects.
• Real Estate – Many members of the BLG Commercial Arbitration Group appear as counsel in domestic arbitrations concerning Canadian real estate investments, leasing and property development matters.

Staying Abreast of the Most Recent Developments and Trends

In compliance with BLG’s Code of Professional Excellence, members of our Commercial Arbitration Group are required to attend a series of formal internal training seminars led by our most experienced arbitration lawyers, and focused on domestic and international arbitration issues. The continuing business and legal education of our arbitration professionals also includes participation in courses, accreditation programs and symposia of leading arbitral organizations.