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Guide sets out how to achieve arbitration’s potential: review

A new book by Toronto litigator and commercial arbitrator Marvin Huberman, should enable parties, counsel and arbitrators to obtain the promised benefits of arbitration, or at least to maximize the chances of doing so, according to a recent review in CBA National magazine.

A Practitioner’s Guide to Commercial Arbitration, which includes contributions from a team of experienced Canadian arbitration practitioners, outlines the applicable law clearly and concisely and articulates how to approach and conduct a case to achieve arbitration’s potential, writes Barry Leon, a judge of the Commercial Division of the Eastern Caribbean Supreme Court in the British Virgin Islands.

As the various authors share their thoughts on achieving arbitration’s potential, Leon says a strong common theme and teaching emerge. This, he says, leads “persuasively to the conclusion that a different mindset and different approaches and practises are needed from those in Canadian courts on which Canadian lawyers were weaned.

“So many of the authors in A Practitioner’s Guide to Commercial Arbitration make the point that things need to be done differently in arbitration to achieve it’s potential that a reader may feel he or she has run the gauntlet, each time being hit with the same focused message. Yes, there is strength in numbers!” he writes.

Examples of the message of “doing things differently” can be found throughout the book, Leon explains, including in John Judge's comments on the theme of arbitration’s promise compared to the court process: “While some litigation skills can be translated into the arbitration environment, many cannot … Many Canadian litigation counsel … fail to appreciate both fundamental and nuanced difference in arbitration.”

Another chapter reviews the advantages and disadvantages of mediation-arbitration and generally suggests that it can be a useful and cost-effective dispute resolution mechanism. A Practitioner’s Guide to Commercial Arbitration is also not short on guidance for being an effective advocate in arbitration, writes Leon, and also discusses expert evidence in arbitration.

“For those interested in pursuing arbitration further, there is a 10-page list of useful arbitration resources (texts, seminars, journals and periodicals, arbitration centres and associations, Canadian and international legislation, treaties and instruments),” adds Leon.

Ultimately, Huberman and the book’s authors, says Leon, “have made an important contribution to arbitration literature in Canada, and to the practice of arbitration in Canada, and by Canadians. All those involved in the arbitral process, and in dispute resolution more broadly, would be well advised to take on board the teachings of these Canadian thought leaders in arbitration.”

A Practitioner’s Guide to Commercial Arbitration is available online through Irwin Law.

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