Reviewed by Gordon E. Kaiser*
Most disputes in the energy sector are ultimately resolved by either a regulatory agency or an arbitration panel. The courts are generally a distant third. Regulators have the primary jurisdiction but the majority of the contract disputes end up in the hands of the arbitrators.
Arbitration has grown tremendously over the last 20 years particularly domestic energy arbitration. That is why the latest book by Brian Casey will be of particular interest to Canadian energy lawyers.
September 10, 2016, was an important day in Canadian arbitration circles. On that day Brian Casey sent the third edition of Arbitration Law of Canada, Practice and Procedure to the publishers in New York. The Red Book, as we know it, has become a staple in Canadian arbitration. It is the Bible for both arbitrators and counsel alike.
The book has grown a bit since the first edition in 2004 and the second edition in 2011. The first edition was only 358 pages. The second was 459 pages. Now it is 578 pages.
Those pages do not include the appendices which are very useful despite the additional size and weight. Those appendices were crucial to the initial success of this book and they remain crucial. This book is one stop shopping. The appendices include all the necessary references to the relevant statutes and rules.
One of the features that is unique to this book and likely one of its most important features are the Practice Notes. This is not something you see in every book. The Practice Notes are invaluable whether you are a young counsel starting out or a senior arbitrator hobbling into the hearing room. The number of Practice Notes has grown over the years but they remain concise and up to date.
The frequent updating is important and rare. Few arbitrators as busy as Brian Casey could write three editions of a book this size in such a short time. In every edition Brian thanks Eva for putting up with countless lost evenings and weekends without complaint. We should be the ones thanking Eva.
The third edition has the same 10 chapters as the first edition. They were the basics in 2004 and they remain the basics. Casey has avoided the temptation to wander into the esoteric.
More international content has however crept into the book. That may be because there are more international arbitrations today. Or Canadians are getting more international cases. It really does not matter. The increase in international content is also important.
There are differences in domestic and international arbitration. This stands out in Chapter 10 which deals with the recognition and enforcement of awards. The Casey chapter on this subject is as good as any on this subject.
If you cannot enforce the award there is no point having the arbitration. Here there are real differences between international and domestic arbitration and a growing army of lawyers and investigators with novel set aside claims.
Both counsel and arbitrators should buy this book. As quickly they can. In fact they should buy two. Somebody will borrow one and never give it back.
*Gordon E. Kaiser, Arbitrator and Settlement Counsel, Jams Resolution Center, Toronto and Washington DC. He is a former Vice Chair of the Ontario Energy Board; an Adjunct Professor at the Osgoode Hall Law School; the Co-Chair of the Canadian Energy Law Forum; and a Managing Editor of this publication (The Energy Regulation Quarterly).