Toronto’s Arbitration Place offers alternative to Trump’s America

Monday, September 25, 2017

“Bold” describes the legal profession to about the same extent that “discreet” describes The Donald.

But there are exceptions. And there’s a lot to be learned from them. For those eager to escape lawyers’ unique brand of quicksand, from which they innately view opportunity as risk, Arbitration Place (AP) in Toronto may be a good place to start.

One of Trump’s tactics, as we now all know, is to make anyone and everyone nervous. What Kimberley Stewart, AP’s CEO, noticed, was that Trump’s stand against all-people-who-are-not-U.S.-citizens-and-therefore-must-be-either-terrorists-or-taking-away-jobs-from-hard-working-Americans was making the individuals walking her halls more than a bit uneasy.

In the case of AP, the upset stomachs belonged to the arbitrators, lawyers, business people and expert witnesses who populate the cutting-edge international arbitration facility Stewart had founded in 2012 in Toronto’s Bay Adelaide Centre. A professionally peripatetic, cosmopolitan group, much of their work takes them to the U.S. and particularly New York, one of the world’s leading venues for international arbitration.

After consulting with William Rowley, one of Canada’s leading arbitrators in the international space, Stewart realized that her clientele was not particularly thrilled with the proposition that entering the U.S. might at best be uncomfortable, and at worst might not happen.

The upshot: a series of brilliant advertisements in Global Arbitration Review, perhaps the most widely read publication in the international arbitration community, at a cost of about $30,000. The opening salvo in the body of the ad? “In a high-stakes international arbitration, you have enough things to worry about — getting to the hearing shouldn’t be one of them.” And the ad’s banner? “When a North American hearing makes sense. But a U.S. venue does not. The logical place? Arbitration Place. Toronto, Canada.”

So far, according to Rowley, the six-week campaign, which appeared on the back cover of the magazine twice and twice-weekly at the top of the publication’s e-newsletter for six weeks, has drawn seven new international arbitrations to AP in the last three months. Needless to say, even one new international arbitration was worth more to AP than the cost of the entire GAR campaign.

What many parties forget is that the physical location of an arbitration hearing can be different from the place that the parties designate as the “seat” of the arbitration. The seat determines which country’s courts will have the right to review the arbitral award, but virtually every arbitration agreement has a little-noticed provision that allows a tribunal to hold hearings at a place other than the seat, albeit without prejudice to the parties’ choice of seat.

So it was in one of the cases that found its way to AP in the wake of the uncertainties evoked by the Erstwhile Tweeter, not to mention his travel bans. The parties had chosen New York as the seat, but they were all Mexican and unsure of how welcoming the U.S. might be. On the arbitrator’s suggestion, they ended up in Toronto, partly because the facilities were better, the costs were lower, and the Mexican nationals involved could take comfort in the assurance that Canadians would not make them feel unwelcome or untrustworthy.

It’s not that Toronto is ever going to take on London, Singapore or New York. But there’s no reason why Canada’s location, bicultural environment, and confluence of common and civil law regimes, shouldn’t combine with Toronto’s reputation for safety and amenities, to give the city a place at the discussion table.

Then there’s Arbitration Place, always at the top of or near the ranking of international dispute resolution centres in terms of comfort, facilities, modernity, attractiveness and service. AP offers an “all-encompassing approach” to hosting arbitrations, including concierge-level administrative services and in-house legal support, one that’s earned plaudits worldwide. In terms of sheer space, even New York and London don’t have facilities dedicated specifically to hosting and servicing international arbitrations that are as large as those at AP.

It’s enough to make you feel good about yourself as a Canadian. Let’s hope others in the profession will follow the lead and realize they can in fact take on the world.

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