Settling the disputes on the Rim

Settling the disputes on the Rim

Peter Wright, president and founding director of the Vancouver Maritime Arbitrators Association, and vice-president, Western Canada, of the Association of Maritime Arbitrators of Canada, explains the workings of the Vancouver Maritime Arbitrators Association

FOLLOWING ratification of the International Convention on the Recognition and Enforcement of Foreign Arbitral Awards, complementary Canadian and British Columbia legislation was enacted in 1986 governing maritime arbitrations in British Columbia and incorporating the model law adopted by the United Nations Commission on International Trade Law (UNCITRAL). The Vancouver Maritime Arbitrators Association (VMAA) was incorporated under the British Columbia Society Act on December 9, 1986.

The entry into Canada of the parties to an international arbitration, and of the arbitrators, counsel and witnesses involved in the arbitration, who are not resident in Canada, is facilitated by the Canadian Department of Employment and Immigration, which does not require employment authorisations for such persons. Also, the parties may have their own lawyers represent them or give advice concerning the arbitration, even if they are from other jurisdictions, without being a member of the Law Society of British Columbia.

Vancouver is ideally situated to service disputes all around the Pacific Rim. It is conveniently located midway between the west side of the Pacific and Europe, enabling communications during the same business day with the UK and Europe, as well as the Americas, Asian countries and Australasia. And a recently expanded international airport connects Vancouver with major centres around the world.

Vancouver is at the centre of an enormous volume and diversity of bulk, neo-bulk and container cargo. The port is the second largest in North America. Owners, operators, agents, brokers, importers, exporters, stevedores, marine insurance companies and brokers and law firms all interact.

In this process there exist many opportunities for differences of opinion. But within the above groups lie a large number of highly trained and qualified individuals whose expertise is commercially focused and whose names are included in the roster of the Vancouver Maritime Arbitrators Association. There are a growing number of contracting parties domiciled in Vancouver who are involved in the movement of goods in or out of the region and who are incorporating the rules of the VMAA into their arbitration clauses.

The port of Vancouver is also a major player in the cruise industry, and in 1997 operated as the terminal port for 22 vessels carrying 650,000 passengers on the Alaska cruise theatre.

The amendment of its Income Tax Act in 1991 to exclude international shipping income from domestic taxation gave Vancouver the opportunity to achieve its natural status as a centre for international shipowning and operating.

The VMAA is a non-profit society and is continually involved in a programme aimed at familiarising local maritime industries, and shipping centres around the Pacific Rim, with the expertise available in Vancouver and with the desirability of the city as a centre for resolving maritime disputes which may arise anywhere in the world.

From the large number of ethnic communities whose members are involved in maritime commerce in British Columbia can be drawn arbitrators, interpreters and experts who have knowledge of conditions and practices in other parts of the world.

All facets of international shipping are represented in Vancouver, and the VMAA arbitrators have a broad range of experience which includes ship operations and shipbroking, ship navigation, cargo stowage, marine surveying, freight forwarding, terminal operation, marine insurance and maritime law.

The Institute of Chartered Shipbrokers, Company of Master Mariners, the Nautical Institute, the International Maritime Centre, the North West CruiseShip Association, the Chamber of Shipping of British Columbia, the Chartered Institute of Transport and members of many other maritime organisations with headquarters or branches in Vancouver also provide a ready source for maritime arbitrators.

No undue delays occur in the appointment of arbitrators, who can be chosen directly from the VMAA roster or with the assistance of the VMAA administration, if desired. Appointments are not restricted to the roster, and the parties may choose arbitrators from anywhere in the world. Under the VMAA rules, prospective arbitrators or conciliators can only accept appointments if they are fully satisfied as to their competence to determine the issues in dispute and their ability to give the arbitration or conciliation the time and attention which the parties are entitled to expect without lengthy interruptions.

When legal assistance is required, it can be provided by an active and capable maritime bar in Vancouver and in other parts of Canada and the US, many members of which have had extensive experience of acting in international and local maritime arbitrations as counsel and arbitrators. Should foreign parties want their lawyers to represent them, overseas lawyers may do so without having to be qualified to practise law in British Columbia.

In the event of a dispute arising out of or in connection with a contract where the parties wish to seek an amicable settlement of the dispute by conciliation, the conciliation can be conducted in accordance with the VMAA Conciliation Rules in the form applying at the time the contract is made.

The VMAA encourages the publication of awards, but this is subject to the wishes of the parties. Any award is assisted by the enabling legislation, which severely limits the occasions on which an award could be the subject of court proceedings.

All costs involved in processing maritime arbitrations and conciliations in Vancouver compare very favourably to those in other major maritime arbitration centres. These lower costs embrace arbitrators, conciliators and legal fees, costs of accommodation and other related expenses. The relatively low cost of the Canadian dollar has the effect of further reducing expenses.

The VMAA holds a regular series of Dispute Resolution Educational Seminars throughout the year. Many of these workshops include mock arbitrations or conciliations. These professional development programmes have proven to be of great interest to the entire Vancouver maritime community.

The VMAA has recently worked closely with the Association of Marine Underwriters of British Columbia in developing a procedure to resolve disputes involving marine insurance claims and counter-claims not exceeding C$50,000. Rules have been developed for use by parties who wish to take advantage of a short form of arbitration under the Vancouver Maritime Arbitrators Association Supplementary Expedited Arbitration Rules for Marine Insurance Claims. A panel of thirteen marine insurance arbitrators has been selected to hear arbitrations under these rules.

The parties will choose one of the roster by a method of assigning weighted preference to the arbitrators in accordance with the procedure outlined in the rules, which effectively grants each party the right to veto nearly half the roster. Another advantage is that a reasonable fixed fee of C$1,650 will apply, which will be shared equally by the parties. There is also a fixed time period for the hearing of evidence and arguments as well as for the presentation of the arbitrator's award.

Should these supplementary expedited arbitration rules prove to be successful, they will undoubtedly be considered for use in other sectors of the marine community in British Columbia.

The VMAA has enjoyed a steady development over the years and now has a roster of seventy arbitrating members. It plays an ever-increasing and important role in the maritime community.