Reflections on CanArbWeek and ICC 2023 – An Evolving Canadian Arbitration Landscape

On October 18 and 19, 2023, I had the privilege of attending two prominent arbitration events in Canada: CanArbWeek, and the Annual Conference of the International Chamber of Commerce Canada (“ICC Canada”). These two events are highly regarded in the Canadian arbitration community, both for domestic and international practitioners. These two events featured exceptional panelists,  and seminars.

As an Articling Student, I was fortunate to delve into the cutting-edge developments in this area of law. While it is expected of legal students and practitioners to stay updated on legal precedents, it is truly a unique privilege to gain deeper insights from seasoned practitioners and to explore the rapidly evolving landscape of arbitration in Canada. As such, I have distilled my top takeaways from these conferences to the following three points:

• Artificial intelligence technology (“AI”) is an inevitable addition to the practice of arbitration;
• Good writing habits pay dividends; and
• There is no “right” age to get involved in arbitration.

1. AI is becoming an inevitable addition to the practice of arbitration

At ICC Canada, I was fortunate enough to hear from the National Technology Officer of Microsoft Canada, John Weigelt, in the keynote “Reimagining a Legal World Transformed by Artificial Intelligence.” Weigelt provided unique insights into the recent trends in AI and stressed that significant advancements have been made in the field of AI over the past few years. These AI models have evolved to offer a more robust and versatile approach to various legal tasks, including those in the field of arbitration.

Weigelt’s presentation emphasized the transformation of AI from experimental concepts into practical, real-world applications such as ChatGPT and Retrieval Automation Generation (also referred to as “RAG”). This shift holds particular significance for the field of arbitration, as it introduces innovative methods to streamline procedures, enhance decision-making, and optimize data utilization. Noteworthy examples of these streamlined processes include automated e-discovery and the automatic generation of affidavits and pleadings.

As Articling Students are all too familiar, a substantial amount of time is often devoted to meticulously compiling documentation. Looking ahead, with the potential for AI to complete these meticulous tasks based on a few prompts, one cannot help but contemplate how much lawyers’ efficiency will improve as they gain additional bandwidth from this streamlined workload. Weigelt stressed that despite being unfamiliar and somewhat foreign to many practitioners, all these tools are being developed to complement, rather than replace, the processes that underscore arbitration and law more generally.

While AI can greatly enhance the efficiency and accuracy of tasks, it is not intended to replace human expertise and judgment. In the context of arbitration, this means that arbitrators and counsel can leverage AI to support their work, offering more efficient data processing and research capabilities. However, the final decisions, strategy, and ethical considerations remain within the domain of human professionals.

A critical aspect discussed in Weigelt’s keynote was the need to prioritize the protection of consumer data and the preservation of confidentiality when using AI in the legal context. This is especially vital in arbitration, where sensitive information is often involved. Weigelt stressed the importance of ensuring that AI systems are designed and employed with robust security measures to safeguard client data and maintain the utmost confidentiality.

This concern aligns with the broader conversation about ethics and privacy in AI applications. In arbitration, it highlights the responsibility of legal professionals to choose AI tools and systems that adhere to stringent data protection standards, ensuring that sensitive information remains secure and private throughout the arbitration process. I believe this takeaway is not exclusive to arbitration, but rather, to all spheres of law that inevitably integrate with AI tools.

Weigelt’s keynote provided an excellent tour d’horizon of the developments of AI as a legal tool, quelling any myths that robots are here to replace jobs in arbitration (at least for the time being).

2. Good writing habits pay dividends: Why arbitrators should focus on developing robust “defensive” award-writing practices to minimize the likelihood of appeals and preserve award finality;

At CanArbWeek, I attended a panel on “defensive” award writing. During this session, legal counsel and arbitrators discussed key aspects of arbitral award writing and examined whether comprehensive, lengthy awards that aim to cover every detail truly serve parties’ interests. Additionally, they discussed the arbitrator’s role in going beyond the parties’ submissions, the challenges posed by unrealistic deadlines for award delivery, and the value and cost of dissents in arbitration cases, using recent cases like Freedman v Freedman and Tall Ships v Brockville for context. I should note that our firm acts for the City of Brockville in the latter case.

An arbitral award, in simple terms, is a formal binding decision that is issued by an arbitrator or arbitration panel at the conclusion of a hearing. It serves as the final resolution of the dispute between parties, akin to a judge’s ruling in a court case.

“Defensive” award writing, therefore, is a practice where arbitrators craft awards with meticulous attention to detail and mindfulness to prevent challenges. Arbitral awards are frequently contested, primarily on the grounds of lacking adequate reasons or explanations. Defensive award writing aims to create an award that is comprehensive and thorough, providing clear and convincing justifications for the decision, thus reducing the likelihood of challenges based on inadequate reasoning.

A significant takeaway from the discussion was that good arbitral award writing is not just a technical requirement for arbitrators, but a reflection of the broader importance of effective written communication in the legal and business world. Strong writing skills are essential for clear and concise articulation of complex legal arguments, which is critical in arbitration proceedings. However, the benefits of good writing habits extend far beyond the realm of arbitration.

First and foremost, clear and well-structured writing enhances the communication of ideas, ensuring that the intended message is conveyed accurately. This is not limited to the legal field but applies to virtually every aspect of professional life. Whether you are crafting a business proposal, a research report, or a simple email, the ability to express yourself clearly can be the difference between success and failure.

Additionally, well-written documents are more likely to be respected and better received by others. In the legal world, a well-reasoned arbitral award can build a reputation for fairness and expertise, making parties more inclined to engage in future dispute resolution through arbitration. Similarly, in the corporate world, professionals who consistently produce high-quality written materials are seen as more credible and reliable.

Lastly, for any administrative law/appellate advocacy aficionados, the panel forwarded that the standard of review – when an arbitral award is challenged – ought to be different than that applied in typical civil appellate matters. One of the main reasons was that arbitration often involves non-judicial persons serving as arbitrators. Consequently, the standard of review should be adapted to the unique nature of arbitration. Some members of the panel argued in favour of what is referred to as a “relative standard” of review, in contrast to the typical “judicial” standard of review. This concept, while not firmly established in Canadian jurisprudence, is recognized in the legal systems of Australia and New Zealand. The relative standard is less stringent than a full judicial review and considers the specifics of the arbitration process, respecting the expertise and discretion of the arbitrators.

3. There is no “right” age to get involved in arbitration

I was exposed to the field of international arbitration in the infancy of my legal career. My first exposure to this area of the law came through participating in an international moot competition as a law student, which offered an initial glimpse into the complexities of international arbitration. Nonetheless, this area of the law seemed shrouded in mystery to me. Even today, many of my law school peers remain unfamiliar with what international arbitration entails. It is not a prominent part of the Bar exam, and it is not commonly offered as a course in Canadian law schools. Moreover, the large majority of arbitrators and counsel that sit on cases are, respectfully, far more seasoned than the standard Articling Student. These circumstances led me to believe that there may not be vacancy nor opportunities for younger lawyers and students.

My perception could not have been further from the truth. To my surprise, on my first day at the conference, I was warmly embraced by the Young Canadian Arbitration Practitioners (YCAP) group. This group’s mission is to foster a sense of community among lawyers under the age of 45 involved in arbitration and to advocate for the inclusion of junior lawyers striving to establish themselves in this legal field. Moreover, I discovered that my youth was not a hindrance but rather a valuable conversation starter at the conference. As mentioned earlier, there is a scarcity of young professionals entering this field, and when people see an articling student attending these conferences, it may signal a changing trend.

I hope that my experience can encourage other articling students and junior associates to consider international arbitration as a potential practice area. It offers a unique blend of commercial litigation and cross-border transactions, opening doors to regions of the world you might never have explored otherwise.

For me, I am eagerly anticipating where this experience will lead me in the coming years, and I am immensely grateful to my firm, Perley-Robertson, Hill & McDougall LLP/s.r.l., for providing me with, and seeing the value in this opportunity.

If you require assistance with any arbitration matters, please do not hesitate to contact R. Aaron Rubinoff, at [email protected] or John Siwiec at [email protected].