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Jan Advocate 2017

46 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE • Confidentiality. An appeal to our open court system will certainly reveal the existence of the dispute and the outcome and may reveal much about the contentions and evidence advanced by the parties. Mitigation of this downside of the appeal process is a complicated and uncertain undertaking. Unlike arbitration, in which specific confidentiality concerns can be addressed by agreement, the court process is presumptively open and the public interest must be addressed in seeking closure. • Expedition. An appeal will certainly extend the time before which a decision is final and may do so by a multiple of many times the period of time taken by the arbitral process itself. This is dramatically demonstrated in the cases cited above. • Cost. An appeal will certainly add, perhaps substantially, to the cost of the dispute resolution process. Even if no appeal is ultimately brought, the possibility of an appeal adds costs to the process in that the proceedings must be conducted and the award issued with a view to the possibility of an appeal. The notions of procedural practicality and “writing for the parties” may be compromised, resulting in legal maneuverings by counsel in the arbitration with appeal in mind, over-lawyered submissions and added arbitrator fees. • Neutral Forum. If the parties have selected arbitration in order to avoid the home courts of either party—a factor that may apply at either the international or interprovincial level—an appeal requires the parties either to select one of those courts as the court to deal with appeals or to select a jurisdiction that has no connection to either party and that is then likely to be a questionable choice to review any decision of the chosen arbitrator(s) on the merits. • Flexible Procedure. Giving the parties the choice to add rights of appeal does increase flexibility in the sense that it gives the parties another option but, for the reasons already mentioned, at the cost of defeating virtually all of the other features that make arbitration a desirable alternative to the courts. An appeal is not an adaptation of procedure within the arbitration to suit the needs of a particular case; rather, it is the adoption of an inflexible procedure outside the arbitration that will be conducted, in most cases, by rules that take no account of the particular dispute. Indeed, as we have seen from the cases cited above as examples, the appeal process can be extended and complicated by issues that would never arise in an


Jan Advocate 2017
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