This article was featured in our 2023 Mining Arbitration Report, which is part of a series of industry-focused arbitration reports edited by Jus Mundi and Jus Connect.
This issue explores the mining industry and presents a goldmine of information based on data available on Jus Mundi and Jus Connect as of February 2023. Discover updated insights into mining arbitration and exclusive statistics & rankings, as well as in-depth global and regional perspectives on mining projects, disputes, & arbitration from leading lawyers, arbitrators, experts, and in-house counsel.
THE AUTHORS:
Rahat Godil, Partner at Fasken
Tracey Cohen, KC, Partner at Fasken
Karen Wyke, Partner at Fasken
Christian Leblanc, Partner at Fasken
The mining sector is a growing user of international arbitration. Arbitration as a means of dispute resolution is particularly attractive to players in this industry for a variety of reasons including because mining projects are often long-term, capital intensive projects which face a multitude of risks and uncertainties and engage parties in different jurisdictions- meaning disputes among international parties are prevalent. Arbitration offers: flexibility, the ability to select decision makers with subject matter expertise, enhanced finality, process and cost efficiencies, and a more readily enforceable outcome. However, deciding to submit disputes to arbitration via a dispute resolution clause in your mining contract (or agreeing to arbitrate in the absence of a contractual clause) is only the first step. Once parties choose to arbitrate, a number of other decisions need to be made and selection of the place of arbitration (the legal or arbitral seat) is one of the most important strategic decisions.
In choosing the seat of arbitration, the parties choose the law governing their arbitration procedure. The seat does not have to be in the same jurisdiction as the governing law of the contract, nor does it have to be the venue of any in-person hearing. Among other things, the choice of seat may determine or impact:
- What subject matter can be arbitrated;
- The jurisdiction of the court(s) that will have a supervisory role over the arbitration and the scope of the role of the courts;
- Factors impacting recognition and enforcement of arbitration agreements;
- Circumstances in which an arbitral award may or may not be recognized, enforced or set aside;
- Who has the power to grant interim measures and how that power is regulated; and
- The manner in which an arbitration is conducted.
The arbitral tribunal will typically use the law of the seat to determine any procedural issues that have not been specified in the arbitration agreement or cannot otherwise be agreed on between the parties. Diligence is therefore required when choosing the seat and choosing the wrong place can result in undesirable procedural and practical consequences.
Some important factors that must be considered in making this significant decision include the neutrality of the jurisdiction; the applicable arbitration law and legislation; the extent to which courts in that jurisdiction would interfere or assist with the arbitration process; whether the jurisdiction is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention); whether there are any peculiarities in the local laws of the jurisdiction (for example, restrictions on who may act as arbitrators and counsel in the arbitration); whether the jurisdiction offers any sector-specific advantages or disadvantages; and practical considerations (such as proximity of witnesses, counsel or arbitrators; travel requirements or limitations; availability and cost of arbitration facilities and support services; climate; and time zones).
Canada offers several advantages from this perspective, making it a top choice for arbitrating international mining disputes. Leading Canadian seats include Toronto, Vancouver, Calgary and Montreal. Some of the reasons why parties should consider choosing a Canadian seat for mining arbitrations include the following:
- Canada is a bilingual country with a rich legal tradition in both common law and civil law.
- It has been recognized as one of the leading mining jurisdictions and offers diverse mining-related expertise.
- It is an arbitration-friendly jurisdiction and has adopted a modern statutory framework for arbitration as well as international best practices.
- Canada has an excellent reputation for fairness, neutrality, safety, stability and diversity.
- Canada was the first country to adopt modern arbitral legislation based on the UNCITRAL Model Law on International Commercial Arbitration.
- Canada is a party to the New York Convention.
- Leading international arbitral institutes support arbitrations being con- ducted in Canada.
- Procedural rules of any major international arbitral institute (for example, the International Chamber of Commerce (ICC), the International Centre for Dispute Resolution (ICDR) and the London Court of International Arbi- tration (LCIA)) can be used in an arbitration seated in Canada.
- Canadian courts are supportive of arbitration, respectful of party autonomy and readily recognize and enforce arbitration agreements and foreign arbitral awards.
- Canadian judiciary has expertise in dealing with disputes arising in the mining industry and has made a notable contribution to the development of international arbitration law.
- Canadian arbitration practitioners include highly skilled and experienced lawyers who are well-versed in the arbitration process and also have mining expertise.
- Canadian arbitrators have been recognized globally and include individuals with significant experience in mining disputes.
- Canadian seats offer world-class infrastructure, modern arbitration facilities with second-to-none technology and convenient and reliable access to ancillary services.
- Arbitrations held in Canada are typically more cost-effective compared to the more traditional arbitration centres.
- Canadian cities mentioned above are relatively easy to access from many different parts of the world.
In a nutshell, whether the parties value industry-specific expertise, modern arbitration legislation which restricts court intervention, sophisticated legal talent and arbitration experts (including the judiciary, arbitrators, counsel, accounting, environmental and technical mining experts), cost-saving benefits and/or a cosmopolitan, safe and neutral jurisdiction with world-class facilities, Canadian jurisdictions are very well-placed, and deserve serious consideration, for serving as legal seats in international mining arbitrations.
ABOUT THE AUTHORS:
Rahat Godil is a business-minded litigator with a diverse practice focusing on complex and high-value commercial and contractual disputes. She is a strategic thinker and leader committed to excellence, professionalism and inclusiveness. Rahat has significant commercial arbitration experience and regularly represents clients in both international and domestic institutional and ad hoc arbitrations. Rahat also has substantial experience with joint venture and shareholder disputes, multi-party disputes, class action defence, securities related litigation and constitutional litigation.
Tracey Cohen, KC is a leading commercial litigation and dispute resolution Partner in the Vancouver office. Tracey has been recognized for expertise in Corporate and Commercial Litigation, Securities Litigation and International and Commercial Arbitration and has repeatedly been recognized as one of Canada’s top 25 female litigators. Tracey was appointed as Queen’s Counsel in 2015 and was admitted as a Fellow of the American College of Trial Lawyers in March 2019, and a Fellow of the Litigation Counsel of America in 2020. Tracey is currently a member of the Firm’s Partnership Board. She is also Co-Chair of Fasken’s Commercial Litigation Group in BC and Chair of Fasken’s National Arbitration Steering Committee.
Karen Wyke is the Co-Leader of the Litigation Group at the Calgary office. Her practice focuses on complex commercial, construction, and contract litigation and arbitration. Karen leverages her over 20 years’ of experience to advise clients on a broad range of complex litigation and arbitration disputes. Providing counsel to clients in the energy, agricultural, chemical and construction industries, she has been involved in the resolution of a variety of claims, including: multi-party actions, contract disputes, estate litigation, product liability claims, and construction disputes.
Christian Leblanc specializes in intellectual property with a focus on patents, particularly pharmaceutical patents. His practice also encompasses media, communications, and defamation law. Christian represents many clients from various industries who want to protect their intellectual property and high technology rights. A seasoned litigator, Christian has acted on behalf of clients before the Supreme Court of Canada as well as courts of every level in Quebec and different administrative tribunals. Christian delivers seminars and taught at both Concordia University and the École du Barreau du Québec. He is a member of Ad Idem/Canadian Media Lawyers Association, which he chaired from 2013 to 2015, and of the Canadian Journalists for Freedom of Expression (CJFE)
Find more data-backed insights in our 2023 Mining Arbitration Report
