International Construction Law Review
THE BENEFITS OF A “CIVIL” APPROACH IN INTERNATIONAL ARBITRATION
OLIVIER F KOTT
Senior Partner, Norton Rose Canada LLP
Introduction
There are many advantages to arbitration as a means to settle international commercial disputes. Indeed, arbitration is the preferred solution to alleviate the concern that litigation before the courts in the other party’s jurisdiction will give that party an unfair advantage. The parties in arbitration can agree on the seat of the arbitration in a neutral jurisdiction and have the opportunity to negotiate the applicable rules of law, the number and identity of the arbitrators, the scope of their jurisdiction and the rules governing the arbitral proceedings. In addition, the confidential nature of the proceedings and the hearings is also a significant advantage. The fact that more than 140 countries have ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards facilitates the recognition of arbitral awards rendered in those countries. All these factors make international arbitration an attractive alternative to litigation before the courts.
However, whereas not too long ago arbitration was perceived to be an expeditious, efficient and economical dispute resolution process, many users of arbitration today complain that the process has become frustrating, inefficient, time-consuming and even more expensive than litigation. This is a frequent observation in construction-related arbitration.
Many surveys have been conducted in an attempt to identify the principal reasons why arbitration, both international and domestic, has in many cases become costly and inefficient. Several authors have also expressed their views on this topic. There appears to be a general consensus that the three principal factors which increase the cost and reduce the efficiency of arbitration are: highly contentious advocacy, extensive discoveries and motion practice.
It is interesting to note that these three factors are under the control of the parties and their lawyers. Unfortunately, certain lawyers consider that they must treat their opponent as the enemy in order not to be perceived as being weak. Others are under the impression that it is their professional obligation to make certain that in the pursuit of the relevant evidence no stone must be left unturned. The attitude adopted by the lawyers during the dispute resolution process will have a significant impact on the cost and the efficiency of arbitration.
The International Construction Law Review [2013
30