Janet Walker CM impresses peers and clients alike as, with some calling her “the best international construction arbitration specialist” that Canada has to offer.
Janet Walker, CM is an independent arbitrator based in London, Toronto, and Sydney. She has served in ICC, ICDR, DIAC, HKIAC, KCAB, LCIA, PCA, SIAC, and ad hoc arbitrations in a variety of seats in matters relating to construction, heavy equipment, M&A, JV, shareholder, intellectual property, pharma, environmental, finance and employment. She is founding co-chair of CanArbWeek, past chair of the ICC Canada arbitration committee, co-author of Commercial Arbitration in Australia, and co-editor of the Canadian Journal of Commercial Arbitration; and recipient of the CIArb Canada Award for Distinguished Service.
What do you enjoy most about working in international arbitration?
Arbitrations involve an ever-changing combination of facts, issues, rules and laws – all set within a rich and complex context of human relationships – relationships with other members of the tribunal, with and between counsel, and between the many fact and expert witnesses and other individuals involved in the matter and the underlying events. Every arbitration presents a fascinating new array of opportunities to learn and to develop the craft. In the end, though, it is the human dimension that I enjoy most.
As past chair of the ICC Canada arbitration committee and founding member of CIArb Canada and Toronto Commercial Arbitration Society, what does Canada offer from an arbitration standpoint that distinguishes it from other seats?
Major Canadian cities such as Toronto, Montréal, Calgary and Vancouver are joining a number of other rising stars among seats for international arbitration. With some of the most respected senior arbitrators in the world and an increasingly sophisticated ‘next generation’ of arbitrators and counsel gaining international recognition, the Canadian arbitration community continues to make an outsized contribution to the field. As co-chair of CanArbWeek, now entering its fourth year, I can say with pride that there is a real fission of energy. It is an exciting time for arbitration in Canada!
To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting arbitrators based on their geographical location?
Having practised for many years from bases (with homes) in London, Toronto, and Sydney, I have come to learn the benefits of proximity to the cities where the hearings are held. During the pandemic travel restrictions, I sat in hearings running through the night and found it to be feasible, but daytime online hearings are more sustainable over time. Accordingly, geography may continue to be a factor in arbitrator selection but so too will the willingness of an arbitrator to meet the needs of the parties, whether through travel or flexibility in scheduling as the matters require.
A common complaint about international commercial arbitration is that the process is no longer efficient. What can arbitrators do to ensure that the arbitration proceeds smoothly and without unnecessary delay?
It is not that the process is “no longer efficient” so much as the cases are becoming more complex and our expectations for efficiency are increasing. Still, there is much that can be done. Proactive case management begins with the receipt of the file and continues until the award is delivered. Engaging the parties frequently; encouraging them to confer over options and to clarify their differences ahead of rulings; convening brief videocalls as needed to resolve issues promptly so that the parties can move forward; and anticipating and addressing practical concerns in the conduct of the hearing, are all techniques that we see being deployed more regularly. The process is no longer one of “set it and forget it.” It is an active role for sole arbitrators and tribunal members alike.
Arbitrator independence and disclosure is a hot topic, with concerns that standards are opaque and restrictive. Do you agree?
No, I don’t agree. To be sure, as the practice of arbitration develops and the community expands, the standards are dynamic, and we must find ways to respond to change. Parties understandably want to know more, and it is important to trust that with enough information and good advice, they will make sound decisions. There will always be the risk of mistakes and mischief in some cases, but we must all work to maintain the confidence of the business community.
How does your experience as an expert witness enhance your practice as arbitrator?
The participants in the arbitral process comprise many different roles – counsel, arbitrators, fact and expert witnesses – not to mention stenographers, interpreters and, increasingly, the technicians and other service providers who serve vital logistical functions during hearings. The better one understands the work of each of these participants and what is involved in performing their roles, the better one is equipped to manage cases and hearings in complex matters. Having spent some twenty-five years studying and teaching advocacy and having served in many mandates over that time as a consulting and a testifying legal expert, I have gained an appreciation of what is involved in performing in these roles; and I hope that this makes me more effective in managing the process as an arbitrator. It is not unlike the benefits to a conductor of having played some of the instruments. I would add that, having grown up with a father who was a court reporter, I also have some insight into the importance of that role and the dedication it requires, even though much has changed since the days of writing in shorthand on a notepad.
As a founding member of ArbitralWomen, what more can the international arbitration community do to meet the challenge of improving diversity?
Recalling gender diversity in the arbitration community from just a few decades ago, we have come a long way. With each year, the arbitration community reflects better the legal profession, and the legal profession reflects better the larger community across the range of demographics. But this is a general statement. The work ahead to make arbitration more inclusive varies enormously from place to place, and although there have been important gains for some groups in some places, there remains much to be done to support others. I am thrilled to see the achievements of ArbitralWomen, the Pledge and other initiatives to advance gender diversity; and I am especially proud to see the trend to leverage this momentum to promote inclusion of other historically under-represented groups. Whether this is by helping them to build their networks, to gain standing and recognition, to be selected for conference panels, arbitral panels or positions of leadership, the techniques that have assisted women can and are being used to promote diversity more broadly. I am also delighted to see arbitral institutions like the ICC championing initiatives for disability inclusion and support of the LGBTQIA community.