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<xTITLE>Arbitration Tips-N-Tools (TNT): Round 6</xTITLE>

Arbitration Tips-N-Tools (TNT): Round 6

by Julie Hopkins, Rachel Goedken, Linda Michler, Amy Schmitz
February 2021

In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about drafting Arbitration Clauses, especially in a digital world and faced with the complexities of the Covid-19 pandemic.

Round 6: What are your 3 top tips and/or tools with respect to drafting Arbitration Clauses – especially in the digital era and complexities of Covid?

Responses:

A) Julie Hopkins -

  1. The fundamentals of drafting a good arbitration clause remain the same. This presentation I found online a few years ago for YCAP (Young Canadian Arbitration Practitioners) by Vasilis Pappas, arbitration counsel based out of Vancouver, is a useful resource.
  2. Consider adopting institutional arbitration rules that explicitly provide for the discretion to order virtual hearings. Examples include - the AAA Commercial Arbitration Rules, LCIA Arbitration Rules, the new ICC Rules effective January 1, 2021. A Canadian example is the new Vancouver International Arbitration Centre’s Domestic Arbitration Rules.
  3. Make it clear in the arbitration clause that an agreement as to physical hearing location does not override the discretion given to arbitrators in any agreed Rules to conduct a virtual hearing.

B) Rachel J. Goedken - 

  1. Review and when appropriate, revise to expressly permit virtual arbitration hearings.

C) Linda A. Michler - 

In addition to a clause determining the way arbitrators/ADR organization will be picked, consider addressing the following (and not only in the age of Covid-19):

  1. Information Security – must be reasonable. Reasonableness is based on the sensitivity of the information, burden and costs, the value of the case, and efficiency.
  2. Considerations: asset management, access controls, encryption, communication security, physical environmental security, operational security, incident management (some depend on whether virtual or in-person or a mixture of virtual and in-person).
  3. Parties should agree on the measures, and agree early, preferably before the first case management conference. If they cannot agree, the tribunal has the authority to decide.

 

Stay tuned for more Arbitration TNT by Prof. Amy Schmitz coming your way next week.....

 

 

 

Biography


Julie Hopkins

Julie was counsel with Borden Ladner Gervais LLP and practised commercial litigation, arbitration and administrative law for more than 25 years.

 

She advised and represented clients on complex and technical matters concerning oil and gas, insurance, labour and employment, estates and trusts, corporate, and constitutional law. As a result, she has experience across a variety of industries including electricity generation and transmission, oil and gas (including oilsands, pipelines and LNG), construction, aviation, trucking, real-estate development and health care.

 

As an arbitrator, Julie has decided matters ranging from disputes under asset purchase agreements to appeals of election results under a First Nation’s election code. She is an unjust dismissal adjudicator under the Canada Labour Code. As a Panel Chair of the Alberta Insurance Councils Appeal Board, she also heard appeals of decisions concerning the licensing and discipline of insurance agents, brokers and adjustors.

 

Julie is also an instructor and course director for the Chartered Institute of Arbitrators Accelerated Route to Fellowship Course, which is aimed at experienced arbitrators and arbitration counsel.

 

Rachel Goedken

As Director of the Werner Institute at Creighton Law School, Professor Goedken focuses on nonlitigation dispute resolution – arbitration, mediation, and negotiation. Before joining the faculty, Professor Goedken earned her BS in Psychology and MS in Industrial Relations, then worked in labor relations and human resources for several years before attending law school. Following graduation from William Mitchell College of Law, Professor Goedken served as labor counsel for Northwest Airlines, where she negotiated labor agreements, arbitrated contract disputes, and responded to complaints of employment discrimination. More recently she worked for MidAmerican Energy Company, directing the employee and labor relations staff, and provided appellate arbitration services to the Union Pacific Railroad before teaching at Creighton. She continues to serve as a labor arbitrator and mediator. Professor Goedken has taught ADR, Mediation, Legal Research & Writing I, II, and II, and Commercial Contract Drafting. She has also coached the law school's Mediation, ABA Arbitration, Baseball Salary Arbitration, and Client Counseling teams. Professor Goedken became the Director of the Werner Institute in January 2020 after serving 2 1/2 years as Senior Associate Dean for Academic Affairs.

Linda Michler

 

Linda A. Michler is an arbitrator and mediator and may be reached at 412.854.4315/ 412. 480.1731 or on-line at www.nadn.org/linda-michler She is licensed in PA, NY and NC and is a member of the National Academy of Distinguished Neutrals and is on the roster of the American Health Law Association’s Dispute Resolution Service, CPR’s Employment Disputes, Mass Claims, Franchise, Banking, Accounting and Financial Services Panels, FINRA’s Neutral rosters, and the American Arbitration Association’s neutrals for mediation and arbitration including bankruptcy, landlord-tenant/real estate, and disaster panels. She is the Publications Chair for the American Bar Association’s Dispute Resolution Section’s Arbitration Committee. 

 


Professor Amy Schmitz joined the University of Missouri School of Law and the Center for Dispute Resolution as the Elwood L. Thomas Missouri Endowed Professor of Law in 2016. Previously she was a Professor at the University of Colorado School of Law for over 16 years. Prior to teaching, Professor Schmitz practiced law with large law firms in Seattle and Minneapolis, and served as a law clerk for the U. S. Court of Appeals for the 8th Circuit.  Professor Schmitz teaches courses in Contracts, Lawyering, Online Dispute Resolution (ODR), AI, Data Analytics and the Law, Arbitration, International Arbitration, and Consumer Law. She has been heavily involved in ODR teaching and research for a long time and is a Fellow of the National Center for Technology and Dispute Resolution, as well as the Co-Chair of the ABA Technology Committee of the Dispute Resolution Section and the ODR Task Force.  She serves on the Association of American Law Schools Executive Committee on Commercial and Consumer Law, was an External Scientific Fellow of the Max Planck Institute Luxembourg, and is a researcher with the ACT Project exploring AI and ODR. Professor Schmitz has published over 50 articles in law journals and books, and a book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, with Colin Rule.