The Power of Perspectives

The Canadian Bar Association

Alexander Gay

International law

The Singapore Convention: A breakthrough for international trade

By Alexander Gay November 27, 2018 27 November 2018

The Singapore Convention: A breakthrough for international trade

 

Litigation and arbitration can be lengthy and costly, which explains in part why mediation has been gaining in popularity as a method for resolving cross-border commercial disputes. What’s lacking, however, is a comprehensive legal framework for the enforcement of international settlement agreements. Without one, parties to a mediated settlement usually have to get a court judgment in a foreign jurisdiction to enforce the agreement.

That is set to change, as the United Nations Commission on International Trade Law (UNCITRAL) moves forward with a new tool that will facilitate the recognition and enforcement of mediated settlements.  This year, UNCITRAL approved the Convention on International Settlement Agreements Resulting from Mediation – informally known as the Singapore Convention.  The document is now open for signing.

The document is the culmination of a process that began in May 2014, when the United States proposed to develop a multilateral approach that would assist with the recognition and enforcement of mediation settlements.  In essence, the idea was to replicate the mechanisms that exist under the New York Convention for arbitration awards.

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Workplace

Owed no duty of care

By Alexander Gay September 24, 2018 24 September 2018

Owed no duty of care

There was a time when a public servant, who could count on employment for life, was expected to endure public criticism, while remaining silent and faithful to his or her political masters.  There was a good reason for this. Reputational interest is of little value to someone who enjoys guaranteed employment for life. 

However, that is all changing. A guaranteed life career as a public servant is not what it used to be. Pension benefits that once supported a career in public service are far less accessible, as the public service across Canada tries to align itself with the private sector.  

What’s more worrying is that government employers can now argue that they owe no duty to protect the reputational interests of its public servants accused of misconduct.  A recent decision from the UK Supreme Court illustrates how.

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Arbitration

Bringing the dispute in time

By Alexander Gay April 16, 2018 16 April 2018

Bringing the dispute in time

When to commence arbitration is no small matter for a business to consider, particularly when there is a time bar clause in its commercial agreement.  And yet time bar clauses, which can shorten the limitation period found in a provincial limitations law, are rarely used and often misunderstood by counsel.

A contractual time bar clause in an arbitration agreement will typically require a party to commence arbitration within a given period of time, failing which it will not be able to assert the claim either in an arbitration forum or before the courts (though this must be stated clearly).

This type of clauses offers the promise of bringing certainty into a commercial relationship; or parties will use it in circumstances where the evidence supporting a claim is susceptible to immediate loss.

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Litigation

Designing the right clawback agreement for privileged information

By Alexander Gay March 5, 2018 5 March 2018

Designing the right clawback agreement for privileged information

 

Think of it as “produce first and verify later”. 

With the growth of e-discovery use, counsel are relying more heavily on clawback agreements to mitigate against the inadvertent production of privileged documents. Here a few essential elements that should be considered by counsel when drafting such an agreement.

A clawback agreement should contain a provision that confirms that the inadvertent production of a privileged document does not constitute a waiver of privilege.  That may seem obvious, but the obligation that a party be made to return a privileged document is separate and apart from the waiver that may occur with from its production in the first place. 

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Arbitration

The consequences of ignoring costs submissions in arbitration

By Alexander Gay February 6, 2018 6 February 2018

The consequences of ignoring costs submissions in arbitration

 

How are costs to be handled by an arbitral tribunal?  Legislation in Ontario, as well as in most other Canadian jurisdictions, offers little guidance. After a number of attempts, the international arbitration community has also tried and failed to articulate clear guidelines for arbitrators. 

That’s in part because arbitral tribunals will typically defer to domestic law in making their assessments.  But different jurisdictions have different approaches to awarding costs.  And in Canada, we have few decided cases on the issue. 

There is, however, a new case out of the United Kingdom that speaks to the risks associated with failing to adequately deal with costs in arbitration. It could have some application here in Canada.

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