Effective Advocacy in Commercial Arbitration

Commercial arbitration has changed the approach to the resolution of business disputes. Business people around the world recognize that differing business interests and difficulties in the performance of agreements will lead to disputes. In anticipation of the possibility of dispute, many agreements, especially where the parties are in different countries have an arbitration and governing law clauses. The information in these slides explain in considerable detail the process of commercial arbitration in Canada, with an emphasis on Toronto, Ontario where the author practices as a Chartered Arbitrator, Mediator and Legal Counsel.

The author highlights the differences between litigation and arbitration. It is also worth noting that arbitration may not just be an alternative to litigation but rather, an alternative to negotiations or mediation between the parties to resolve their dispute. If settlement negotiations are unsuccessful, the parties can agree to a dispute resolution method in which they have input from designing every aspect of the process to selecting the most suitable arbitrator or arbitral panel to determining scope appellate rights.

Selecting the arbitrator and the rules applicable to the arbitration involves numerous choices and nuances highlighted in this article. The article covers the following headings:

• Is arbitration the same as litigation?

• Why arbitrate rather than litigate?

• Arbitration is a consensual process

• Similarities can be deceptive

• Arbitration binds only parties to the agreement

• Designing the arbitral process

• Selecting the arbitrator or arbitral panel

• Rules affecting the arbitration

• Motions in the arbitration

• Written advocacy and pleadings

• Taking evidence in the arbitration

• Documentary evidence

• Witnesses in the arbitration

• Conducting the hearing

• Interpreting and correcting the award

• Remedies from arbitral awards

• Anti-suit and anti-arbitration injunctions

The author discusses the important opportunities for written and oral advocacy in commercial arbitration. He emphasizes that knowledge of the option can help cousel maximize the prospect of a successful result whether there is a settlement or the case goes to a final award.

Igor Ellyn, QC, CS, FCIArb. is senior partner of Ellyn Law LLP and Chair of the Business Litigation and Arbitration Practice Group of INBLF.com, a network of more than 300 law firms worldwide. A member of six arbitral tribunals, he arbitrates and mediates in English and French or bilingually and is also conversant in Romanian, Hebrew and German, He is a past president of Canadian Bar Association-Ontario. 

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