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
