While international arbitration spans multiple types of claims, overlapping jurisdictions and legal regimes, there are some commonalities to consider it an appropriate subject for a brief addendum within this guidebook’s framework. A practitioner considering a transaction involving third-party funding of international arbitration will need to consider multiple potentially relevant jurisdictions. For example, one might need to consider the applicable arbitral rules (if any), the law of the seat of the arbitration, the governing law of the underlying agreements, any applicable international treaties, the law of the jurisdiction in which the award will be enforced, and, potentially, the law of the parties’ counsels’ home jurisdictions. Accordingly, this addendum is necessarily limited and endeavours to highlight some of the issues and approaches that are common in the context of third-party funding and international arbitration.
Read moreIs Arbitration the Answer?
Most employers have seen the forecasts. The waves of employees let go in the COVID crisis will file a surge of employment claims. Worse, plaintiffs’ lawyers will scrutinize the many changes required by the pandemic and assert class actions and collective actions in response to practices or policies that are not on rock-solid legal ground.
Read moreWinner Takes All: B.C. Court Confirms Indemnification Costs as the Normal Rule in Commercial Arbitrations
In domestic and international commercial arbitrations, it is common for successful parties to be awarded their actual reasonable legal fees and disbursements. The legislation governing domestic commercial arbitrations in British Columbia permits arbitrators to exercise their discretion to award such costs.
The Supreme Court of British Columbia discussed the law applicable to indemnification cost awards in its recent decision in Allard v. The University of British Columbia. In Allard, the successful party to an arbitration had sought – and been awarded – its actual reasonable costs. In awarding these costs, the arbitrator rejected an argument that indemnity costs represent “elevated” costs in the arbitration context, noting:
Read more‘Friday the 13th’ horror franchise scares up new litigation over profits
Another day, another fight over the profits from a Hollywood production — this time over a classic horror franchise.
Sean Cunningham, producer of the 2009 horror reboot “Friday the 13th,” sued Warner Bros. and its New Line Productions as well as Paramount Pictures, claiming breach of contract.
Read moreCanada Line union issues 72-hour strike notice
The union representing approximately 180 workers on SkyTrain Canada Line issued a 72-hour strike notice to the employer late Friday afternoon.
BC Government and Service Employees’ Union (BCGEU) states this decision warning of labour action was made after four days of mediation last week, and several months of negotiations in which no major progress was made on wage parity with CUPE 7000 workers on the SkyTrain Expo and Millennium lines, operated by TransLink subsidiary BC Rapid Transit Company (BCRTC).
Read moreArbitrator upholds mandatory employee COVID testing
In a recent unreported labour arbitration award, Caressant Care Nursing & Retirement Homes and Christian Labour Association of Canada, the arbitrator, Dana Randall, upheld the decision that the employer’s mandatory COVID-19 testing policy was a reasonable exercise of management rights.
The case concerns an employer, a retirement home located in Woodstock, Ontario, which provides rental accommodation with care and services to residents who can live independently in a residence while receiving support. The home is provincially regulated by the Retirement Homes Regulatory Authority under the Retirement Homes Act, 2010 and employs staff to provide laundry services to residents of an adjacent nursing home.
Read moreMandatory Arbitration Clauses Are No Longer Presumptively Enforceable
Last year, we reported on how Canadian courts will uphold mandatory arbitration clauses in some cases, depending on how the plaintiffs are classified.
In 2019, the Supreme Court of Canada held in TELUS Communications Inc. v Wellman that a mandatory arbitration clause found in telephone service contracts prevented a proposed class of business customers from advancing a class action proceeding against TELUS, but the same clause did not preclude a class action of consumers from bringing forward their claim. Mandatory arbitration clauses were only generally unenforceable against consumers under Ontario's Consumer Protection Act, 2002, and that other types of parties to an agreement, such as business customers, are held to the strict terms of a mandatory arbitration clause.
Read moreTrust Disputes: 5 Reasons to Reconsider an Arbitration Provision
Trust companies look at a variety of factors in deciding whether to accept trusts for administration. While a well-crafted estate plan, funded with straight-forward, traditional assets, created for the benefit of amicable beneficiaries is the ideal new account to onboard, even the best laid plans can be thwarted when an unforeseen fight erupts between the beneficiaries or against their new trustee. Assets once intended for children, grandchildren or charities are instead spent on attorney fees in extended lawsuits. Setting expectations with living settlors and beneficiaries in advance, documenting the settlor’s capacity, and including in terrorem clauses may prevent the fight in the first place. Mandatory arbitration provisions offer an alternative to a courtroom, but there is no one-size-fits-all solution for resolving these fights.
Read moreWill Mediation And Private Judges End The Uncivility Of In-Court Family Law Litigation Post COVID?
Arbitrators and the limits to the duty of disclosure
The duty of disclosure is a legal duty in court and arbitral proceedings. If you are involved in arbitration, the arbitrators appointed are under such a duty to disclose where there is apparent bias or impartiality – but what are the limits of that duty? The specialist commercial lawyers at Bahamas law firm ParrisWhittaker are specialists in advising on disclosure issues in commercial disputes.
A ruling1 from the UK’s Supreme Court, which has highly persuasive authority on the courts in The Bahamas, is particularly noteworthy because various arbitral bodies intervened in the case (including the ICC, LCIA and GAFTA).
Read moreResolving conflicts in the workplace
No matter what the size or level of success of your organization, there are bound to be conflicts. With individuals coming from a variety of backgrounds and bringing a host of personality traits, workplace methods, opinions and tolerance levels to the table, workplace conflict is inevitable. It's important to identify what conflict looks like before discussing conflict resolution.
Read moreArbitration Agreement Does Not Bar New York State Division of Human Rights Proceeding
Earlier this month, the federal court for the Western District of New York issued a decision in Charter Communications, Inc. v. Derfert, No. 20-cv-915, 2021 WL 37726 (W.D.N.Y. Jan. 4, 2021) holding that an employment arbitration agreement did not preclude a hearing before the New York State Division of Human Rights (the Division) on an employee’s discrimination claim.
Read moreManaging Generational Differences in the Workplace: Ways to Tackle Intergenerational Conflict
Nowadays, the workforce has become very diverse, not just in terms of culture, gender, and ethnicity but also in age. With the emergence of such changes in the employees’ demographics, the workplace scene today is made up of three or sometimes four different generations:
Traditionalists
Baby boomers
Generation X
Millennial
People who belong to ages 15 to 24 make up almost 20% of the world population, and they account for 15% of the global workforce. Each of these age groups grew up experiencing various events contributing to their perception of work and values.
Read moreThe 5 most common conflict resolution styles (and which ones make you a better leader)
“Conflict can and should be handled constructively; when it is, relationships benefit. Conflict avoidance is not the hallmark of a good relationship. On the contrary, it is a symptom of serious problems and of poor communication.”
These wise words from Harriet B. Braiker, author of Who’s Pulling Your Strings? How to Break the Cycle of Manipulation and Regain Control of Your Life, provides a backdrop for the kind of conflict resolution styles that serve organizations best.
The Pandemic Shows Why Mandatory Mediation May Be the Future for Business Disputes
The coronavirus pandemic has been a stress test on the American legal system, shutting down courthouses, forcing judges to postpone long-standing trials and pushing lawyer-client meetings onto Zoom calls.
The results have been clear: traditional legal routes of resolving business disputes are simply too difficult and costly to continue during the pandemic.
Read moreDelaying Enforcement of Arbitration Agreements May Lead to Undesirable Consequences
In Garcia v. Haralambos Beverage Co., the California Court of Appeal embraced the adage “time kills all deals” to conclude that an employer waived its right to arbitrate the wage-hour claims at issue in the case by, among other things, delaying two years to seek arbitration as a last resort and waiting to locate the plaintiffs’ signed arbitration agreements. By waiving its right to arbitrate, the employer also lost its ability to strike class claims as a result.
Read moreCongress Prohibits Surprise Medical Bills, Sends Payment Disputes to Mandatory Arbitration
Congress’ year-end COVID-19 Relief Bill includes the No Surprises Act, aimed at curbing surprise medical bills starting in plan year 2022. Applicable to federally regulated health plans, the Act caps patient responsibility for out-of-network emergency services and removes the patient from resulting payor-provider reimbursement disputes. Such disputes will be resolved through mandatory baseball-style arbitration, subject to guidelines potentially limiting abuse of the arbitration process. The Act precludes consideration of both billed charges and governmental-payor reimbursements, and it imposes a loser-pays rule for arbitrator fees if the parties cannot agree on a reimbursement rate. The Act also regulates air ambulance bills and certain non-emergency services from out-of-network providers at in-network facilities (e.g., where the patient does not have the ability to choose an in-network provider at the facility).
Read moreConventional wisdom in arbitral proceedings
Questioning the meaning of conventional wisdom and identifying the principles which constitute it requires going back to the foundations of international arbitration, which is particularly relevant when the role of arbitrators and counsel in international arbitration comes under criticism. Among the criticisms that international arbitration faces are the increased time and cost of proceedings and the quality of arbitrators' decisions,(1) with criticisms against investor-state arbitration being particularly acute.(2) In this context, conventional wisdom bears an element of acceptability and thus, if properly observed, should have an ability to:
Read moreCongress Prohibits Surprise Medical Bills, Sends Payment Disputes to Mandatory Arbitration
Congress’ year-end COVID-19 Relief Bill includes the No Surprises Act, aimed at curbing surprise medical bills starting in plan year 2022. Applicable to federally regulated health plans, the Act caps patient responsibility for out-of-network emergency services and removes the patient from resulting payor-provider reimbursement disputes. Such disputes will be resolved through mandatory baseball-style arbitration, subject to guidelines potentially limiting abuse of the arbitration process. The Act precludes consideration of both billed charges and governmental-payor reimbursements, and it imposes a loser-pays rule for arbitrator fees if the parties cannot agree on a reimbursement rate. The Act also regulates air ambulance bills and certain non-emergency services from out-of-network providers at in-network facilities (e.g., where the patient does not have the ability to choose an in-network provider at the facility).
Read moreHaliburton v Chubb: The final say on an arbitrator’s duty of disclosure
An arbitrator’s independence and impartiality are among the foundations of arbitration. The recent Supreme Court case of Haliburton v Chubb clarifies the English law position on:
the arbitrator’s duty to disclose their appointments and involvement in other arbitrations;
whether and when disclosure is needed; and
whether the test under section 24 of the UK Arbitration Act (application to remove an arbitrator due to doubts as to impartiality) is the same as the common law test of bias.
The case is of significance for the wider international arbitration community and a significant number of arbitral institutions, namely the LCIA, ICC, CIArb, LMAA and GAFTA, were given permission by the Court to intervene given the importance of the issue.
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