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Why choose CCAC?

FIRST AND FOREMOST, A PREVENTIVE MEASURE

Introduction

Well meaning authors of synallagmatic acts now include an arbitration clause in case of a possible dispute. Said dispute usually occurs when the level of confidence between the parties is at its lowest. It then becomes extremely difficult and costly to proceed to the nomination of an arbitrator as, generally the standard clause states that both parties must first agree on the choice of the arbitrator, and it is not unusual for a party to refuse the choice of the other party simply because said choice is the other party’s. The selection process quickly stalls and, too often, the parties must require the help of a state run Court of law in order to name the arbitrator. Once chosen, the arbitrator must then initiate a negotiation between the interveners in order to come to an agreement on the arbitration process. Between them, those two (2) preliminary steps usually ensure that the costs and delays of arbitration will be disproportionate to the nature and purpose (complexity) of the litigation.

1. To initiate the process quickly and restrictingly

Referring to arbitration under the aegis of the Centre will effectively bypass those preliminary difficulties. Indeed, any party wishing to submit a particular point or question to arbitration has but to contact the Centre (respecting proper CCAC regulations) and the procedure will immediately get under way – in a quick, direct, binding and restrictive manner.

2. For choosing the arbitrator

The Centre makes sure that the arbitrator, chosen from a list of proven professionals, has the required expertise to properly conduct the arbitration process, that he is available, that there is no conflict of interest, that he can rapidly answer objections and preliminary questions and that he will see to it that the parties act diligently.

Unless it is specifically requested, the Centre strongly suggests that tripartite arbitration be kept for those litigation matters where it proves justified. Generally speaking, when arbitration addresses juridical matters, one arbitrator suffices. Let’s note that, when the litigation addresses highly technical matters, it might prove advantageous to choose a specialist over a lawyer (even a highly experienced one) as president, as long as said specialist can see that the hearing will go smoothly and that proper rules will be respected.

The Centre knows well its arbitrators’ strengths and weaknesses and can easily pinpoint those most ideally suited to a specific case.

The Centre suggests a list of arbitrators (with biographical notes) to the parties; same dispose of a 5 to 7 day delay to communicate (in all confidence) their preference. In the absence of consensus, the Centre will, after having discussed with the parties, proceed to the nomination of the arbitrator(s).

3. For the preliminary conference

The preliminary conference is useful and sometimes proves essential. It contributes to the proper conduct of the debate and helps to simplify matters a practice which is inspired from an aide-mémoire on the organization of arbitration procedures prepared by the United Nations Commission on International Trade Law (UNCITRAL) during its 29th session (New York, May 28th to June 14th, 2008).

This aide-mémoire lists points which may be addressed during the preliminary conference, such as:

  1. list of admissions;
  2. resume of claims;
  3. a list of documents that will be useful for hearing;
  4. a book of exhibits to be produced;
  5. a list of experts’ names with a short summary of each of their intervention.


The preliminary conference allows for solving all matters pertaining to:

  • location of hearing;
  • hiring and paying stenographer(s);
  • date and duration of hearing;

    and to fix a short delay for the presentation of any preliminary motion(s).

4. For a closely controlled schedule

The Centre’s regulations authorize the president to take all necessary measures to insure that the hearing will occur as scheduled and in a timely fashion.

5. For the proportionality rule

The Centre is aware of the importance of distinguishing between arbitration fees on one hand and litigation true stakes, on the other hand.

An arbitrator working under the aegis of the Centre will not hesitate, should it prove necessary, to apply this principle of law taken up, among others, by Quebec legislator, and as evidenced by article 4.2 of Code of Civil Procedure which states:

“4.2. In any proceeding, the parties must ensure that the proceedings they choose are proportionate, in terms of the costs and time required, to the nature and ultimate purpose of the action or application and to the complexity of the dispute; the same applies to proceedings authorized or ordered by the judge.”

6. For the option of splitting of the action

In order to respect the rule of proportionality, it is possible to decide to complete a debate on responsibility before having the hearing for damages. Indeed, should the arbitrator conclude to an absence of responsibility, the belligerents would avoid the sizeable costs and the delays resulting from quantum’s proof.