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?
A) Julie Hopkins -
- 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.
- 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.
- 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 -
- 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):
- Information Security – must be reasonable. Reasonableness is based on the sensitivity of the information, burden and costs, the value of the case, and efficiency.
- 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).
- 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.....