McCarthy Tétrault hosts 2019 CPR Canada Conference in Calgary, Alberta
McCarthy Tétrault is pleased to have hosted the expert panels for the conference “Horses for Courses: Effective Use of Different ADR Mechanisms in the Energy Sector” on October 17th, 2019. The conference was organized by the International Institute for Conflict Prevention and Resolution [“CPR”], and was co-hosted by Blake, Cassels & Graydon LLP.
The well-attended conference brought together practitioners, in-house counsels, mediators and arbitrators from across Canada and the United States. Two panel discussions explored important series of questions relating to the effective use of different alternative dispute resolution [“ADR”] mechanisms in the energy sector.
The first panel was moderated by Martin J. Valasek (Partner, Norton Rose Fulbright LLP), and it included Mary E. Comeau (Calgary Energy and Commercial Arbitrators), Patricia Galloway (Galloway Arbitration, Inc.), Rahat Godil (Partner, Blakes), Dan Kolenick (Managing Counsel, Shell Canada), and John J. Marshall Q.C (Mediator, Arbitration & CPR Distinguished Neutral).
These panelists discussed the increasing use of ADR, and the importance of using the right counsel and arbitrating on terms that all parties can agree on. A recurring theme in the discussion was that ADR is only as good as the parties involved. If the parties have good faith intention to compromise, ADR can be very effective and successful. Specific ADR methods were also discussed, such as “baseball arbitration” and the use of “expert determination” for resolving discrete issues. Given the complexity of disputes in the energy sector, panelists discussed the need for parties to define the terms of document production, bearing in mind the significant direct and opportunity costs that accumulate over time. Finally, the panelists recognized the importance and value of diversity in both counsel and neutrals in energy arbitration. Balancing expertise with fresh eyes and perspectives is key.
The second panel was moderated by Kara Smyth (Partner, McCarthy Tétrault in Calgary), and this panel included Ross André (Senior Litigation Counsel, Southern Company), Sashe D. Dimitroff (Partner, BakerHostetler), Tim Martin, C.Arb, FCIArb (Northumberland Chambers Inc.), and Leanne N. Wichmann (Legal Counsel, Hexagon).
This panel discussion focused on practical tips for disputes policies and drafting of dispute resolution clauses. Panelists discussed the challenges in convincing parties of the need for strong dispute clauses in the initial stages of a business deal, and stressed that any difficulty in agreeing to such terms at an early stage—when parties are friendly—will be significantly greater when a dispute arises in the future. A recurring theme in the discussion was the challenge in balancing specificity and flexibility in drafting ADR clauses. To this end, the panelists discussed the value of various types of clauses, including escalation clauses. Escalation clauses can save everyone significant time and expenses. For example, requiring senior leaders to first meet to try to settle a dispute in advance of arbitration can be an effective and efficient way to avoid costly litigation. The panelists also discussed the biggest driver of costs in arbitration: poor case management and the discovery process. To improve efficiency in arbitration, building in safeguards such as discovery limitations, is essential. Other essential clauses were discussed, including clauses addresses forum selection, procedural rules, and choice of law.
About the International Institute for Conflict Prevention and Resolution
CPR is an independent nonprofit organization established in 1977 with a view to prevent and resolve commercial conflicts effectively and equitably. CPR has handled over $1 Trillion dollars in claims since inception, and continues to emphasize industry-led solutions and early prevention of conflicts. CPR consists of the CPR Institute, a premier ADR-focused think tank, and CPR Dispute Resolution, which provides a wide variety of ADR services.
About McCarthy Tétrault’s International Arbitration Group
McCarthy Tétrault is a leading full-service Canadian law firm with offices in New York and London. Our lawyers have expertise in domestic and international arbitration and ADR across industry sectors.
international arbitration arbitration Baseball arbitration Expert determination CPR Energy dispute resolution ADR clauses