Arbitration to remedy the suspension of judicial activities
In recent weeks, the effects of COVID-19 have been felt on several fronts, and the legal community has not been spared. On March 15, the Chief Justice of Québec and the Minister of Justice published an order to suspend civil proceedings for as long as the Government will maintain the state of public health emergency.
However, the suspension of non-urgent cases, for an indefinite period, will generate uncertainty around ongoing legal proceedings, in addition to increasing the already present congestion of the courts. It is in this context that alternative dispute resolution methods, such as arbitration, become particularly useful.
Arbitration is the process by which the parties undertake to submit a present or future dispute to the decision of one or more arbitrators, outside of the courts. The fact that legal proceedings are pending before the courts does not prevent the parties from submitting their dispute to arbitration.
This alternative dispute resolution has its share of advantages over what the courts can offer in litigation:
- The parties can designate the person who will be responsible for resolving their dispute. An arbitrator with in-depth knowledge of a particular industry or expertise could significantly accelerate the resolution of the dispute.
- The parties can shape the procedural framework of the arbitration according to their needs. Unlike the judicial process prevailing before courts, arbitration grants the parties some flexibility in the organization of pre-hearing conferences, in the presentation of various requests or in the processing of evidence at the hearing, all of which can take place remotely, in writing or by videoconference. This last aspect is all the more important at a time when social distancing must be respected.
- As the arbitration process is not subject to the courts or the delays stipulated in the Code of Civil Procedure, the parties can expect a faster and more efficient settlement of their dispute. It should be noted that the final arbitration award must be made within three months after the matter is taken under advisement.
- Arbitration is confidential. The parties who opt for a private dispute prevention and resolution process (such as arbitration) and the third person assisting them (the arbitrator) undertake to preserve the confidentiality of what is said, written or done in the process.
- The enforceability of the arbitration award. The arbitrator may make orders to ensure the specific performance of contractual obligations.
In light of the above, parties involved in ongoing or future legal proceedings should strongly consider the option of submitting their disputes to the arbitration process. This alternative method of settling disputes, suitable for disputes relating to co-ownership, work and employment or even commercial law, should make it possible to advance the progress of cases which will remain affected by the inactivity of the judicial system, which results from the state of health emergency enacted by the Government.
For more information on this method of conflict resolution, you can consult the page on the Dispute prevention and resolution (DPR) processes of the Ministry of Justice or contact your business lawyer.