Consultation on the Qualifying Criteria for the List of Arbitrators in matters of Final Offer Arbitration
The Canada Transportation Act (CTA) contains several provisions designed to facilitate the resolution of rate and service disputes between shippers and carriers. Final offer arbitration, (FOA), described in Part IV of the CTA, is one of the dispute resolution mechanisms available to the shippers and carriers.
The Canadian Transportation Agency (Agency) administers the FOA, making sure that the process and all the applicable rules, including the timelines set out in the CTA, are being followed. One of the functions administered by the Agency is the selection of an arbitrator. To assist the parties in selecting an arbitrator, the Agency maintains a list of persons who agree to act as arbitrators in FOA proceedings.
The current list of arbitrators includes many distinguished individuals who are lawyers, academics, and consultants. This list was initially compiled from names referred to the Agency by carriers, shippers, shipper associations and other stakeholders. As required by the CTA pursuant to subsection 169(1), the Agency periodically consults on the composition of the list and makes revisions. While the arbitrators on the Agency list are professionals with excellent credentials, their arbitration experience, formal training and transportation expertise varies across the board. In discussions with various stakeholders and FOA participants, it has been suggested that individuals should be “qualified” before being placed on the Agency’s list of arbitrators. In the most recent 2011-2012 Client Satisfaction Survey conducted by Ipsos Reid for the Agency, the respondents expressed continued concerns with the quality of the arbitrator pool and suggested that the Agency address it.
Since the last consultation, new provisions and some amendments were introduced into the CTA. More recently, the government concluded the Rail Freight Service Review. All these factors suggest that it is an opportune time to review the list of arbitrators and establish clear criteria that the arbitrators would be required to meet in order to remain on the Agency list.
In light of this, the Agency is undertaking a consultative process and invites your views on the arbitrator list, the associated criteria and relevant qualifications/expertise of prospective arbitrators. Please refer to the questions below, prepared to guide the respondents in a structured way that will allow commonalities and differences to be identified and eventually, compiling the new list.
The Agency truly appreciates your responses, suggestions and ideas, as well as the time taken to answer the questions.
The Current List of Arbitrators
- 1. Are you satisfied with the composition of the current Agency list of arbitrators? Whether your answer is “yes” or “no”, please explain why?
- 2. Does the list contain a sufficient number of names from which to choose?
- 3. Do you have sufficient information to assist you in the selection of an arbitrator? Currently, people have access to the curricula vitae submitted by the arbitrators.
The New and Revised List of Arbitrators
Some arbitration associations (Ex: ADR Institute of Canada) have established qualifications which arbitrators must meet before being accepted on their lists. These qualifications include expertise in a given field and some form of arbitration training from a recognized institution.
- 4. Are you of the view that clear qualifications should be established to evaluate individuals interested in being on the Agency list of arbitrators?
Competencies in Arbitration
- 5. Should a prospective arbitrator have some or all of the competencies listed in Appendix A? Please indicate which ones you consider essential, good-to-have or not very relevant. Please add any requirements you consider important that are not listed in Appendix A.
- 6. Is it necessary for a prospective arbitrator who wishes to be placed on the Agency list to have knowledge of the legislation, regulations, and procedures listed in Appendix B? Please indicate which ones you consider essential, good-to-have or not very relevant.
- 7. Would it be useful for an arbitrator to indicate specialization related to air, marine or rail transportation as in Appendix C? Please indicate which ones you consider relevant, good-to-have or not very relevant.
Evaluation of Prospective Arbitrators
The Agency proposes the following three options for evaluating the current and prospective arbitrators who wish to be on the Agency list:
- Option A:
- The Agency, on its own, evaluates current and prospective arbitrators.
- Option B:
- The Agency, together with an independent external arbitrator or institution, evaluates current and prospective arbitrators.
- Option C:
- The Agency works with a panel of experienced arbitrators to develop the final criteria and the Agency uses this criteria to evaluate the current list.
- 8. Would you please provide your views on these options to develop the final criteria and evaluate the Agency’s current List of Arbitrators?
- 9. In your view, is it sufficient for the Agency to review the List of Arbitrators every two years?
Opportunity for Review of Qualification as a Person Named to the Agency’s List of Arbitrators
Once the final qualification criteria have been developed and evaluation of those persons on the Agency’s current list has been conducted, the Agency proposes to establish the revised list of persons who can act as Arbitrators for the Agency in accordance with subsection 169(3) of the CTA.
If some of the persons on the Agency’s current List of Arbitrators are deemed no longer qualified:
- 10. Should there be a way and a time period available to those individuals to re-submit their request and demonstrate how they meet the criteria?
Additional Names to be Added to the List of Arbitrators
Presently, there are 30 persons on the Agency’s List of Arbitrators. Depending on the outcome of the evaluations of these persons against the new criteria, the pool of available arbitrators may be reduced.
- 11. In your view, should the Agency be proactive and try to increase the number of arbitrators or simply allow those interested to contact the Agency?
- 12. Are there any other issues or suggestions you have to improve the Agency’s administration of the FOA process?
Please send your comments on any or all of the 12 above noted questions by June 29, 2012, to:
Team Leader, Arbitration Services
Alternative Dispute Resolution Directorate
Dispute Resolution Branch
Canadian Transportation Agency
- Or by electronic mail to:
Submissions received will be posted on the Agency’s Web site. Based on the feedback, Criteria for Inclusion on the Agency’s List of Persons who Agree to Act as Arbitrators will be finalized, and posted on the Agency’s Web site.
Those persons currently named to the Agency’s List of Arbitrators will be evaluated and a revised list of persons who can act as Arbitrators for the Agency will be established.
General Competencies in Arbitration
Arbitral procedure skills
- Be able to define and explain the rules of procedure,
- Possess the ability to determine jurisdiction,
- Be able to deal with preliminary matters which may include, but not limited to, directions on pleadings and disclosures of evidence, determination of the necessity for witnesses or experts, and instructing generally all parties on the conduct of the arbitration hearing and the award process,
- Possess the ability to handle interlocutory matters,
- Possess the ability to identify documents that may assist in the arbitration,
- Possess the ability to hear, interpret and use expert evidence,
- Possess the ability to maintain accurate records of all proceedings,
- Possess the ability to organize and analyze quantitative and qualitative data.
- Ability to recognize and maintain appropriate relationships between and with the parties,
- Ability to maintain a collaborative atmosphere throughout the arbitration process,
- Ability to communicate clearly both orally and in writing.
Decision/Award Making skills
- Ability to recognize and summarize the factual issues,
- Ability to define legal issues and apply them to the facts,
- Ability to reach an independent impartial decision and articulate a decision,
- Ability to clearly explain the rationale behind the decision in writing, if required.
Relevant Experience and Training
- Formal training in arbitration and/or other forms of dispute resolution,
- Ability to demonstrate recent and frequent experience in the conduct of arbitration hearings.
1. Legislation, Regulations, and Procedures
- Commercial Arbitration Act – R.S.C., 1985, c. 17 (2nd Supp) [1986, c. 22, assented to 17th June, 1986]
- Canada Evidence Act – R.S.C., 1985, c.C-5
- Canada Transportation Act – S.C., 1996, c. 10
- Rules of Ethics for Prospective Arbitrators Appointed to Part IV of the Canada Transportation Act
- Final Offer Arbitration, A Resource Tool – Canadian Transportation Agency
- Procedures For The Conduct Of Final Offer Arbitration Pursuant to Part IV of the Canada Transportation Act – Canadian Transportation Agency
- Selecting An Arbitrator: A Resource Tool – Canadian Transportation Agency
- Issues Determined During Final Offer Arbitration – Canadian Transportation Agency
- National Arbitration Rules, ADR Institute of Canada Inc. – As Amended, effective October 1, 2008
- Transportation Appeal Tribunal of Canada Act – S.C., 2001, c. 29
2. For Rail Specialization - Legislation, Regulations, and Procedures
- Rail Costing Regulations – SOR/80-310
- Railway Third Party Liability Insurance Coverage Regulations – SOR/96-337
- Railway Traffic Liability Regulations – SOR/91-488
- Carriers and Transportation and Grain Handling Undertakings Information Regulations – SOR/96-334
- Railway Interswitching Regulations – SOR/88-41
- Rail Complaints: What You Need to Know – Canadian Transportation Agency
- 2011 Guide to Railway Charges for Crossing Maintenance and Construction
- Apportionment of Costs of Grade Separations: A Resource Tool
- Crossings: A Resource Tool
3. For Marine Specialization - Legislation, Regulations, and Procedures
- Canada Marine Act – S.C. 1998, c.10
- Coasting Trade Act – S.C. 1992, c.31
- Pilotage Act – R.S.C. 1985, c. P-14
- Shipping Conferences Exemption Act, 1987 – R.S.C., 1985, c.17 (3rd Supp.)
4. For Air Specialization - Legislation, Regulations, and Procedures
- Air Transportation Regulations – SOR/88-58
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