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WCART. SIXTH ANNUAL ENERGY, MINING AND RESOURCES ARBITRATION CONFERENCE. Issues of Conflicts and Ethics in International Arbitration Murray A. Clemens, Q.C. (Chair), Nathanson, Schachter & Thompson, LLP, Vancouver

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  1. WCART SIXTH ANNUAL ENERGY, MINING AND RESOURCES ARBITRATION CONFERENCE Issues of Conflicts and Ethics in International Arbitration Murray A. Clemens, Q.C. (Chair), Nathanson, Schachter & Thompson, LLP, Vancouver Steven K. Andersen, Esq., Vice President, International Development International Centre for Dispute Resolution, Salt Lake City, Utah Murray L. Smith (Chair), LLM Chartered Arbitrator, Smith Barristers, Vancouver John A. Terry, Torys, Toronto

  2. Ethical Questions 1. What ethical issues arise when dealing with the appointment of the arbitration tribunal and how do they differ when using different appointment methodologies?

  3. ICDR Case Filing Trends Trends: Global Leader of “INTERNATIONAL” Cases since 20012011 ICDR Cases=994,2011 ICC Cases= 794,ICDR Mediations=95, ICDR Webfile= 163

  4. Ethical Questions in International Arbitration There were 44 Challenges of Arbitrators in the 994 ICDR 2011 Caseload (about 4%). • 35 at Appointment Disclosure Stage • 21 Removed (60%) • 14 Reaffirmed (40%) • 9 at Pre-hearing/Award stage • 2 Removed (20%) • 7 Reaffirmed (80%)

  5. Cordelia Regan Goneril King Lear

  6. Arbitrator Arbitrator Arbitrator Party Institution

  7. Ethical Questions in International Arbitration What did the King want to hear or in other words, what do institutions and parties want to have in arbitrator disclosures? Should the two sisters or party-appointed arbitrators need to clarify their partiality, if any, to the parties in the case? • What should have Cordelia disclosed to King Lear or to what degree do arbitrators need to disclose information?

  8. Claimant Jose Martinez 6 John Smith X Ricardo Suarez X Antonio San Martin 3 James Jones X Linda Cruz 4 Charles Brown 10 Ramon Gonzales X Francisco Jimenez 2 George Webber 5 Esteban Garza 7 Barry Lewis 9 Mercedes Sala 1 Nathaniel Peters X Sarah Durham 8 Respondent Jose MartinezX John Smith 1 Ricardo Suarez 10 Antonio San Martin 3 James Jones X Linda Cruz 2 Charles Brown 6 Ramon Gonzales X Francisco Jimenez 5 George Webber X Esteban Garza 8 Barry Lewis X Mercedes Sala 9 Nathaniel Peters 4 Sarah Durham 7 7. Appoint your Arbitrators 1st 2nd 3rd

  9. Ethical Questions 2. What issues arise from a practical and ethical point of view when a party wishes to interview potential arbitrators before appointment? What are the limits of matters to be discussed and what kind of disclosure should be made following appointment?

  10. Ethical Questions An issue which you believe is important if not pivotal to the result is not being addressed by the parties. Do you raise the point, when and how? If the issue occurs to you after the close of the hearing, what do you do?

  11. Ethical Questions You have conducted a mediation and the parties have reached a settlement of a complex dispute. Both parties ask to you to act as an arbitrator should differences arise in the implementation of the dispute. What are the ethical and practical issues. How are they addressed?

  12. Ethical Questions in International Arbitration 5. What resources are available in terms of rules and ethical codes to help reconcile differing practices models around the world?

  13. Ethical Questions in International Arbitration The 2004 Code of Ethics language provides for disclosures WHICH MIGHT REASONABLY AFFECT IMPARTIALITY OR LACK OF INDEPENDENCE IN THE EYES OF ANY OF THE PARTIES. The 1977 Code of Ethics language provided for disclosures WHICH ARE LIKELY TO AFFECT IMPARTIALITY OR WHICH MIGHT REASONABLY CREATE AN APPEARANCE OF PARTIALITY OR BIAS.

  14. Ethical Questions in International Arbitration How carefully do parties manage appropriate ex-parte communications with their potential party appointed arbitrator? • General nature of the controversy • Discuss the candidate’s qualifications • Availability to serve without causing delay • Independence in relation to the parties • Suitability of candidates for presiding arbitrator

  15. Ethical Questions in International Arbitration Based upon the Code of Ethics, what sort of commitments should be made by the arbitrators? Availability to Serve: The 2004 revision imposes an obligation on the arbitrator to determine his or her competence and availability to serve in the case. Duty to: • Public • Parties • Process • Participants (all) • Pro bono

  16. Ethical Questions Are you qualified to undertake and complete the appointment and are you able (time, availability, health, other) to undertake and complete the arbitration within the required time? We can discuss this issue in terms of what kind of a personal examination should one subject oneself to and to what extent is modesty a virtue.

  17. Ethical Questions What does one do when parties are represented by counsel with different experience and skill? In this circumstance, how does an arbitrator ensure that the parties involved in an arbitration are fairly informed and have an adequate understanding of the procedural aspects and legal issues? Is there a role for the arbitrator to “even the playing field”?

  18. Ethical Questions 8. Fees and payment terms. Is there an obligation to give particularized accounts?

  19. Ethical Questions Do you have a duty to move an arbitration on when the claimant, either advertently or inadvertently is not pressing the matter forward and the respondent is only too happy to stand idle? This is a situation where arbitration is markedly different than litigation. In litigation, the defending party is usually brought into the process against its will, whereas in arbitration the parties have agreed to resolve their disputes in arbitration. This distinction was commented on by the British Columbia Court of Appeal in a recent decision Premium Brands Operating GP Inc. v. Turner Distribution Systems Ltd., 2011 BCCA 75 http://www.courts.gov.bc.ca/jdb-txt/CA/11/00/2011BCCA0075cor1.htm

  20. WCART SIXTH ANNUAL ENERGY, MINING AND RESOURCES ARBITRATION CONFERENCE Issues of Conflicts and Ethics in International Arbitration Murray A. Clemens, Q.C. (Chair), Nathanson, Schachter & Thompson, LLP, Vancouver Steven K. Andersen, Esq., Vice President, International Development International Centre for Dispute Resolution, Salt Lake City, Utah Murray L. Smith (Chair), LLM Chartered Arbitrator, Smith Barristers, Vancouver John A. Terry, Torys, Toronto

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