The Quebec National and International Commercial Arbitration
Centre.
Benefits of International Commercial Arbitration
Litigation in the courts of one’s own country is expensive, time
consuming and unpredictable; litigation in foreign courts is generally
more so. Domestic courts may not readily enforce judgment from foreign
courts.
It is natural that parties to international contracts will distrust
the national courts of the other contracting party, abhor the costs and
delays associated with litigation and lament the breakdown in business
relationships often caused by the polarization engendered in the
litigation process. The arbitral process is generally less coercive and
invasive than litigation with comparatively little discovery and
pre-hearing proceedings. It is usually more flexible and adaptable to
the needs of the parties and the individual dispute. Arbitral
proceedings and awards are confidential. Selection of knowledgeable
neutrals can be made by the parties themselves. Delay and cost to the
parties are less.
CAMCA provides a facility uniquely suited to international trade in
North America. It permits commercial parties to avail themselves of
arbitration and mediations services without having to individually
design a dispute resolution regime. Parties to such international trade
agreements need only incorporate a CAMCA clause into their contract
which provides for the arbitration and/or mediation of future disputes.
The recommended clause, incorporating both procedures, is as follows:
“The parties agree that they will endeavor to settle any dispute,
controversy or claim arising out of or relating to this contract,
which they are unable to settle through direct discussions, by
mediation administered by the Commercial Arbitration and Mediation
Centre for the Americas under its rules, before resorting to
arbitration. Thereafter, any dispute, controversy or claim arising out
of or relating to this contract shall be settled by arbitration and
administered by the Commercial Arbitration and Mediation Centre for
the Americas in accordance with its rules, and judgment on the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The requirement of filing a notices of claim
with respect to the dispute, controversy or claim submitted to
mediation shall be suspended until the conclusion of the mediation
process.”
The benefit of inserting such a clause into a contract is to
allow the contracting parties to first refer disputes to impartial
mediation to assist in reaching a settlement followed by binding
arbitration, should the mediation process prove to be unsuccessful. Even
if the parties have not agreed on an arbitration clause in their
contract, existing disputes may nevertheless be referred to CAMCA by a
submission agreement.
CAMCA also provides recommended clauses restricted to arbitration or
mediation.
The Process
A 12 member CAMCA Governing Council, composed of four representatives
from each of the three NAFTA countries including the chief executive of
each institution, is responsible for the overseeing of the rules, fees
and procedures. The Roster of arbitrators and mediators includes 12
neutrals from each country, chosen because of their international
experience, integrity, superior dispute resolution skills and
acceptability to corporations involved in cross-border trade.
The CAMCA Arbitration Rules, available in English, Spanish and
French, generally follow the UNCITRAL Model Arbitration Rules created by
the United Nations Commission on International Trade Law. However, the
CAMCA Rules provide for more expedited proceedings, shortening of time
limits for filing statements of defence and the appointment of one
rather than three arbitrators in the absence of agreement by the
parties. This provision is subject to the discretion of the
Administrator to appoint three arbitrators if appropriate because of the
size, complexity or other relevant circumstances.
In the absence of agreement by the parties on an arbitrator or on the
method of appointment, a list procedure is followed. Parties receive
lists of the names of potential arbitrators from which a fixed number of
names may be struck. The remaining names are then ordered in preference.
There is no prohibition against the appointment of an arbitrator who is
a national of a party, but the Administrator is required to take into
account the advisability of doing so. The Rules specifically address the
issue of the venue for the arbitration. They offer a neutral forum
selection process should the parties fail to agree on the most suitable
location for the arbitration. Under Article 14 of the CAMCA Arbitration
Rules, the Administrator will allow the parties 20 days to submit
arguments and reasons for preferences, regarding the place of
arbitration, to a neutral locale committee composed of representatives
of the nationalities of the parties, and a Chair who is a national of
neither. The committee will then determine the most appropriate site for
the arbitration to proceed.
Unless specifically addressed in an arbitration clause, the CAMCA
Rules, Article 15, state that the language is to be that of the
documents containing the arbitration agreement “…subject to the power of
the tribunal to determine otherwise based upon the contentions of the
parties and the circumstances of the arbitration.”
The CAMCA Rules address the issue of confidentiality, a matter which
does not receive consistent treatment from the Courts of the three
countries. Article 36 of the Rules provide that information disclosed
during the proceedings, by the parties or by witnesses, shall not be
divulged by an arbitrator or by the Administrator.
In response to international criticism of high institutional fees
charged by some centres, CAMCA has provided for reasonable fees which
range from US $1,250 for claims up to US $100,000 to US $7,500 for
claims up to US $5,000,000. The fees for mediation services are also
very reasonable by international standards.
CAMCA: A Unique Approach
CAMCA provides a truly multi-national service. Canada, the United
States and Mexico each have a well-developed, progressive regime for
arbitration. CAMCA offers one overall system for alternative dispute
resolution within the NAFTA area. This includes one set of rules, one
set of administrative procedures and one multi-national panel of
neutrals.
Parties can proceed with a case by filing a request for arbitration
at any one of the four national offices of CAMCA, namely:
American Arbitration Association
140 West 51st Street, New
York, NY 10020.
Tel:212-484-4000. Fax: 212-765-4874
British Columbia International Commercial Arbitration
Centre
1140, 1090 West Georgia Street, Vancouver, British
Columbia V6E 3V7
Tel: 604-684-2821. Fax: 604-684-2825
Camara Nacional de Commercio de la Ciudad de Mexico
Paseo
de la Reforma No. 42, Col. Centro,
Delegacion Cuauhtemoc, 06048
Mexico, D.F.
Tel:: 5-703-28-62. Fax: 592-35-71
Centre d’Arbitrage Commercial National et International du
Quebec
295 Boulevard Charest Est, Bureau 090, Quebec, G1K
3G8
Tel: 418—649-1374. Fax: 418-649-0845
