I. Introduction
International commercial arbitration
is finding a safe haven in Canada after years of neglect, mistrust and
misunderstanding. Canadian and international arbitration institutions are
coordinating the resolution of many commercial disputes involving parties from
different countries using Canada as the place of arbitration, subject to the
laws of Canadian provinces, while including some Canadian arbitrators on
arbitration panels.
This paper is intended to provide
background and introductory information for individuals who wish to use or
participate in the international arbitration process in Canada. It is also
intended to provide individuals who are interested in international arbitration
with a summary of the special features of the process in this country. In this
paper, we shall provide a general overview of the legal framework in Canada.
This will be followed by a review of leading Canadian jurisprudence in the area
of international commercial arbitration and a discussion of recent developments
and trends. Finally, we shall review the work and services provided by a
selection of autonomous Canadian and international arbitration institutions.
II. The Legal Frame Work
Individuals choosing to arbitrate
their international disputes in Canada ought to be aware of the special
features of the Canadian legal framework. Canada is a federal state with ten
provinces and three territories. Canada’s Constitution Act, 1867
[1], provides for the
division of legislative powers between the federal and provincial governments.
Section 92 of the Constitution Act sets out the enumerated classes of
matters over which the provincial governments have exclusive legislative
competence, while Section 91 sets out the enumerated classes of matters over
which the federal government has exclusive legislative competence. It has been
traditionally held that the subjects of ‘arbitration’ and
‘enforcement of arbitral awards’, neither of which is specifically
enumerated among the matters listed in Sections 91 and 92, fall within
provincial legislative competence under Subsections 92(13) (“Property and
Civil Rights in the Province”) and 92 (14) (“The Administration of
Justice in the Province”).[2] As a result, parties choosing to arbitrate their
international disputes in Canada must (with limited exception
[3] and absent any
specific designation by the parties) look to the provincial law of the province
in which they choose to arbitrate for the applicable procedural governing
law.[4]
In 1986, Canada, with consent of its
provinces, adopted the UNCITRAL Model Law on International Commercial
Arbitration (the “Model Law”) [5]. It was the first country in the world to
do so and led the way for other countries to follow suit. The Model Law was
implemented by legislative enactment at both the provincial and federal levels
in Canada in 1986. [6]
The federal Commercial Arbitration Act applies to domestic and
international commercial arbitrations, but is limited to maritime or admiralty
arbitrations or those disputes that involve at least one party that is Her
Majesty in right of Canada, or a Canadian federal crown corporation or
department. The provincial international arbitration legislation in force in
the province in which the arbitration is brought applies to international
commercial arbitrations between private parties where one of the parties is
‘foreign’ and where the federal Commercial Arbitration Act
does not apply. [7]
Interestingly, Canada and its
provinces adopted the Model Law in a unique way, in some cases by making many
modifications to the Model Law text [8] or by choosing to adopt the Model Law as an appended
schedule to the legislation with minor modifications. For instance, the British
Columbia International Commercial Arbitration Act incorporated the Model
Law and added several provisions, including provisions on: the consolidation of
proceedings (s. 27(2)), conferring discretion on arbitral tribunals to apply
the rules of law it considers to be appropriate given all the circumstances
surrounding the dispute (s. 28(3)), governing the process whereby arbitrators
may act as mediators or conciliators in the dispute (s. 30(1)), and interest
and costs (s. 31(7) and (8)). Similarly, Quebec, Canada’s only civil law
jurisdiction, adopted the basic principles of the Model Law by amending its
previous legislation by adding Title 13A “Of Arbitration Agreements”
to the Civil Code and by replacing Book VII “Arbitrations” of the
Code of Civil Procedure [9]. On the other hand, Alberta and Ontario, for instance,
made minor modifications to the Model Law in the text of their respective
legislation and appended the Model Law as a Schedule to that legislation
[10].
Also in 1986, Canada, with the
consent of its provinces, acceded to and ratified the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards (the “New
York Convention”) [11]. The
federal government implemented the New York Convention through the enactment at
the federal level of the United Nations Foreign Arbitral Awards Convention
Act. [12] The
provinces implemented the New York Convention either within the same statute as
the implementation of the Model Law [13] or by way of separate statute [14].
By adopting the Model Law and
acceding to the New York Convention, Canada and its provinces, significantly
improved the old Canadian arbitration regime. These improvements include the
establishment of the following principles: limited scope of court intervention,
consistent recognition and enforcement of foreign arbitral awards, party
autonomy and freedom of contract. Such improvements provide parties involved in
international arbitrations in Canada with the advantages of certainty,
predictability, consistency and expediency in dealing with international
commercial disputes.
III. Jurisprudence in Canada
Recent Canadian case law (both at the federal and
provincial level) demonstrates that courts are increasingly giving effect to
both the Model Law and the New York Convention by demonstrating a tendency
towards enforcement of arbitral agreements and limiting the scope of judicial
review over both Canadian international and foreign arbitral awards. These
trends are seen in the case law relating to stays of proceedings, judicial
review of Canadian international arbitration awards and the recognition and
enforcement of foreign arbitral awards.
(a) Stay of Proceedings - Giving
Effect to Parties’ Intention to Arbitrate
Recent case law demonstrates that
judges will give effect to parties’ intention to arbitrate even in cases
where the written agreement relating to arbitration is unclear, capable of
interpretation or poorly drafted. Since the legislative changes discussed
above, Canadian courts have consistently upheld parties’ rights to
arbitrate their differences where they have agreed to do so by contract and
courts have increasingly resolved any ambiguities in such agreements in favour
of giving effect to the parties’ intention to refer disputes to
arbitration.
In addition, the mandatory language
of Article 8(1) of the Model Law, as adopted in the respective provincial
legislation, effectively provides that, unless the arbitration agreement is
null and void, inoperative or incapable of being performed and, provided that a
timely request is made, the court does not have the discretion to refuse to
refer a matter to arbitration or to stay the court proceedings. Courts have
applied these principles in favour of arbitration in cases where parties seek
to stay judicial proceedings in the courts.
For instance, in the leading case of
Onex Corp. v. Ball Corp.
[15] the Ontario Court had to consider whether a dispute between
parties to a complex joint venture agreement concerning rectification of a
contractual term ought to be submitted to the courts or to arbitration. Blair
J. referred the dispute to arbitration and stayed the court action despite a
dispute between the parties that rectification does not fall within the scope
of the arbitration clause and that it is not a remedy that an arbitral tribunal
is capable of granting. In doing so, Blair J. relied on the parties’
intention that disputes arising from the agreement be arbitrated, the
parties’ choice of the law of Ontario as the governing law of the contract
(which law includes the equitable remedy of rectification) and on the recent
legislative and policy changes in Ontario discussed above. Blair J. stated as
follows (at 158):
That law [the law of the Province
of Ontario] also includes a relatively recent, and clear, shift in policy
towards encouraging parties to submit their differences to consensual dispute
resolution mechanisms outside of the regular court stream: see, Ontario
Hydro, supra [Ontario Hydro v. Denision Mines Ltd., [1993] O.J. No.
2948 (Gen.Div.)]; Boart Sweden AB v. NYA Stromnes AB (1988), 41 B.L.R.
295 (Ont. H.C.); Rio Algom Ltd. v. Sammi Steel Co. (1991), 47 C.P.C.
(2d) 251 (Ont. Gen Div.); the Model Law [International Commercial
Arbitration Act, Ontario], art. 8; and the Arbitration Act, 1991,
S.O. 1991, c. 17.
I see nothing in the Agreement
which excludes rectification from the arbitration process as a matter of
principle or law.
Blair J. stated further at (p. 160):
At the very least, where the
language of the arbitration clause is capable of bearing two interpretations,
and on one of those interpretations fairly provides for arbitration, the courts
should lean towards honouring that option, given the recent developments in the
law in this regard to which I have earlier referred: see also, Gulf Canada
Resources Ltd./Ressources Gulf Canada Ltee v. Arochem International Ltd.
(1992), 66 B.C.L.R. (2d) 113, 43 C.P.R. (3d) 390 (C.A.) a pp. 120-121.
The 1988 Ontario case of Boart
Sweden A.B. v. NYA Stomnes A.B. et al.[16], referred to by Blair J. in the Onex decision,
demonstrates a clear shift in the law towards encouraging arbitration over
litigation in courts. In Boart Sweden, Campbell J., writing for the
court, relied on Article 8 of the Model Law, as adopted in Ontario, and
referred to arbitration certain claims that fell within the terms of the
arbitration clause of an international agreement in issue, and granted a
temporary stay of court proceedings of related claims that fell outside the
agreement. In doing so, and in refusing to consolidate the proceedings in a
single court action, the court relied on the ‘very strong public
policy’ that parties that have contractually agreed that they will
arbitrate their claims instead of seeking resort to the courts, should be held
to their contract. The court also held that to consolidate all the claims into
a single court action would fail to give effect to the law which gives courts a
clear direction to defer to arbitration and would ‘drive a hole’
through Article 8 of the Model Law (as adopted in the Ontario International
Commercial Arbitration Act).
Similarly, in the case of
Canadian National Railway Co. v. Lovat Tunnel Equipment Inc.
[17], the Ontario
Court of Appeal held that a contract for the sale of machinery which provided
that, “the parties may refer any dispute under this Agreement to
arbitration, in accordance with the Arbitration Act of Ontario” meant that
either party could elect for binding arbitration (in spite of the apparently
permissive word “may”). In that case, the respondent/purchaser of
machinery brought an action in the Ontario courts seeking $27,000,000 in
damages from the appellant/designer of the machinery alleging improper design,
construction and manufacture of the machinery, breach of contract and
negligence. The appellant’s motion to stay the action and refer the matter
to arbitration under Article 8 of the Model Law, as adopted in the Ontario
International Commercial Arbitration Act, was refused at first instance.
The Court of Appeal allowed the appeal and stayed the action. In doing so, the
Court relied on the parties’ intention to arbitrate. Finlayson J.A.,
writing for the majority in Lovat Tunnel, stated as follows (at p. 388):
It appears to me that the plain
meaning of section 11 of the contract [“the parties may refer any disputes
under the contract to arbitration”] is that either party to the contract
may elect to have a matter in dispute that is covered by the contract referred
to arbitration. In this case, since the respondents had initiated proceedings
in the courts, the appellants were presented with a choice between electing
binding arbitration or acquiescing in the respondents’ decision to resort
to the courts.
To suggest otherwise is to render
the clause surplusage. ….
In my view, the correct
interpretation of the clause is that “parties” means “either
party”. Thus either party may refer a dispute to binding arbitration and
arbitration then becomes mandatory. Failing such an election by one of the
parties, the matters in dispute can be resolved in the courts.
In Lovat Tunnel, the Ontario
Court of Appeal, while not expressly reversing, distinguished one of its
earlier decisions in the case of McNamara Construction of Ontario Ltd. and
Brock University [18]. In McNamara, the construction contract in
issue contained an arbitration clause that provided in the case of any dispute
arising between the parties that: “either party hereto shall be entitled
to give to the other notice of such dispute and to request arbitration thereof;
and the parties may with respect to the particular matters then in dispute
agree to submit the same to arbitration in accordance with the applicable law
of the place of building.” The trial judge held that the clause merely
provides a right to give notice only, the arbitration was not mandatory and the
parties must agree to arbitrate before the matter will be submitted to
arbitration. In upholding the trial decision in McNamara the Court of
Appeal stated that the contract carefully avoids foreclosing the parties the
option of recourse to the Courts.
The Court of Appeal in Lovat
Tunnel distinguished the wording of the clause in McNamara stating
that the parties in that case had to serve notice of arbitration but it was
permissive for them to agree to proceed. Finlayson J.A., writing for the court,
stated that he could not agree that the obligation to arbitrate in Lovat
Tunnel had to be agreed upon by both parties. Finlayson J.A. stated (at p.
390) as follows:
…There is an abundance of
English authority where language that is less precise than what we are dealing
with here has been held to constitute an agreement to submit disputes to
binding arbitration. See Hobbs Padgett & Co. (Reinsurance), Ltd. v. J.C.
Kirkland Ltd., [1969] 2 Lloyd’s Rep. 547 (C.A.); Tritonia Shipping
Inc. v. South Nelson Forest Products Corporation, [1966] 1 Lloyd’s
Rep. 114 (C.A.); and Mangistaumunaigaz Oil Production Association v. United
World Trade Inc., [1995] 1 Lloyd’s Rep. 617 ( Q.B. (Comm.Ct.)).
In any event, there has been a
significant change since 1970 and McNamara in the attitude of the courts
and the legislature as to the desirability of encouraging the resolution of
disputes between the parties other than by resort to the courts.
The Court of Appeal in Lovat
Tunnel then expressly considered and endorsed the statements made by Blair
J. in Onex referred to above and granted the stay of proceedings and
referred the matter to arbitration.
Similarly, the Alberta Court of
Appeal in the case of Kaverit Steel & Crane Ltd. v. Kone Corp.[19], allowed a stay of
court proceedings and referred a matter to arbitration where parties to a
licensing agreement had agreed to arbitration. Kearns J.A., writing for the
Court of Appeal, held that the power to grant or withhold a reference to
arbitration is very limited under the Alberta International Commercial
Arbitration Act, and the law requires that the parties be held to their
bargain.
The Saskatchewan courts have also
demonstrated a tendency to observe the pattern of judicial deference to
arbitration in dealing with motions to stay court proceedings [20].
In addition, Canadian courts have
held that a large and liberal interpretation of arbitration clauses ought to be
applied in order to give effect to the resolution goals of the parties
[21]. For instance, it
has been held that arbitration agreements survive both the fundamental breach
and completion of a contract, otherwise arbitration could be easily avoided and
its effectiveness would be seriously impaired. [22]
(b) Judicial Review and
Enforcement of Canadian International Commercial Arbitral Awards
Canadian courts have increasingly
exercised restraint in reviewing international commercial arbitration awards
made in Canada and have refused to overturn such awards except in very limited
circumstances. In doing so, Canadian courts have upheld the Model Law principle
of limited scope of review of arbitral awards.
In the leading case of Quintette
Coal Ltd. v. Nippon Steel Corp.) [23], the British Columbia court refused to set
aside an international commercial arbitral award made in British Columbia on
the ground of an alleged error of law. In doing so, the court cited the British
Columbia International Commercial Arbitration Act, which confers no
power on courts to set aside an award on the ground of error of law. On appeal,
the Court of Appeal upheld the trial decision and also held that courts must
try to minimize judicial intervention in international commercial arbitration
awards.
The Quintette decision has
been followed in numerous court decisions throughout the Canadian provinces,
for example in Alberta [24] and Saskatchewan [25].
More recently, in the case of
Corporacion Transnacional de Inversiones, S.A. de C.V. v. STET
Internationasl, S.p.A. et al. [26], Lax J. of the Ontario Superior Court of Justice,
refused to set aside a decision of an international commercial arbitral award
made in Ottawa, Canada and enforced the award. In doing so, Madam Justice Lax
stated that courts extend a high degree of deference to the decisions made by
arbitral tribunals acting pursuant to the Model Law. Her Honour also stated
that the grounds for refusing to enforce an award are to be construed narrowly,
and the public policy ground should be invoked only where enforcement would
violate basic notions of morality and justice. Examples would include instances
of corruption, bribery or fraud, or where the tribunal’s conduct is so
serious that it cannot be condoned under the law of the enforcing state.
(c) Recognition and Enforcement
of Foreign Arbitral Awards
Since Canada’s accession to the
New York Convention and the adoption of the Model Law, Canadian courts have
consistently shown restraint in reviewing foreign international commercial
arbitration awards and have refused to overturn foreign arbitral awards except
in very limited circumstances. For instance, Canadian courts have rejected
challenges to foreign arbitral awards based on public policy grounds. The case
law demonstrates that the refusal to enforce a foreign arbitral award on
grounds of its violation of the public policy of the forum will only be
justified where the award contravenes a fundamental principle of justice or
fairness in substantive or procedural respects.
In the leading case of Schreter
v. Gasmac Inc. [27], the Ontario court granted an application under
section 35 of the Model Law, as adopted in the Ontario International
Commercial Arbitration Act, for recognition and enforcement of an
international arbitral award made in the American state of Georgia (and
confirmed by the U.S. Federal Court). The Canadian respondents opposed
enforcement of the award on a number of grounds, including: (1) the award had
merged in the Georgia court judgment and could only be enforced as a foreign
judgment and not as an international award; (2) there was a denial of natural
justice because the arbitrator had failed to give reasons for her award, and,
(3) it would be contrary to the public policy of Ontario to enforce the award
because the award included a sum which represented an acceleration of further
damages not contemplated by the agreement between the parties.
The court rejected these grounds and
held that the Ontario International Commercial Arbitration Act did not
give the court jurisdiction to refuse to enforce an award where an award has
been confirmed by a court order or judgment in the jurisdiction where the award
was made. The court stated (at p. 618):
It is clear that any such bar to
enforcement would create a gaping hole in the scope of the [Ontario
International Commercial Arbitration] Act and in the assistance and
encouragement it is able to offer to those who wish to use the mechanism of
international commercial arbitration with relative ease and with confidence in
the enforcement procedure.
The court stated further (at p.
619):
… The purpose of enacting the
Model Law in Ontario and in other jurisdictions is to establish a climate where
international commercial arbitration can be resorted to with confidence by
parties from different countries on the basis that if the arbitration is
conducted in accordance with the agreement of the parties, an award will be
enforceable if no defences are successfully raised under articles 35 and 36 [of
the Model Law as adopted in Ontario].
The court also held that the Ontario
International Commercial Arbitration Act did not give the court
jurisdiction to refuse to enforce an award where the arbitrator failed to give
reasons. It was held that the arbitrator’s failure to give reasons for the
award did not constitute a denial of natural justice in the circumstances and
this was not a case where the court should exercise its discretion to refuse to
enforce the award.
Finally, the court rejected the
respondent’s public policy argument and narrowed the scope of review on
such a basis. The court noted that the concept of imposing public policy on
foreign awards is meant to guard against enforcement of a foreign award which
fundamentally offends local principles of justice and fairness, and where the
procedural or substantive rules diverge markedly from those of the forum where
enforcement is sought, or where there was corruption or ignorance on the part
of the tribunal which could not be tolerated. The court stated that the
enforcement procedures of the Model Law could be brought into disrepute if
Ontario courts were to invoke public policy to re-open the merits of an
arbitral award on legal issues decided in accordance with the law of a foreign
jurisdiction, and where there has been no misconduct. Here, the court held that
the respondent had a full hearing and full argument before the arbitrator, and
in any event, the concept of acceleration of payments could not be said to be
per se contrary to public policy in Ontario. Accordingly, there was no
basis to direct the re-trial of issues on the merits.
The Schreter v. Gasmac case
has been referred to frequently in Canadian case law [28] and demonstrates the tendency of
Canadian courts to recognize and enforce foreign arbitral awards.
IV. Recent Developments and Future Trends
No discussion of international
arbitration in Canada would be complete without a reference to the alternate
dispute resolution mechanisms established under the North American Free Trade
Agreement (“NAFTA”) [29]. For private commercial disputes arising under the
sphere of the NAFTA, NAFTA Parties ought to be aware that Article 2022 of NAFTA
specifically provides for the encouragement and use of arbitration and other
alternative dispute resolution techniques as the desirable means of resolving
such controversies. The NAFTA creates and provides various alternate dispute
resolution mechanisms for NAFTA Parties [30]. Of these mechanisms, NAFTA’s
Chapter 11 on investment most significantly impacts the role for international
arbitration [31]. It
is likely that the number of international arbitrations involving private
investment disputes under the NAFTA will increase. The jurisprudence in this
area is developing and ought to be monitored [32].
V. Arbitration Institutions and Canadian
Arbitrators
An increasing number of
international arbitrations are taking on a Canadian flavour. Institutions
headquartered in foreign countries are frequently asked to manage arbitrations
that involve Canadian parties, Canadian counsel and Canadian arbitrators.
Canadian institutions are becoming more active in both promoting and organizing
international commercial arbitrations through their facilities. The
establishment of Canadian autonomous arbitral institutions has helped to
facilitate and encourage parties to seek to resolve their disputes through
private arbitration in Canada and has helped to reinforce the principles and
goals of the Canadian legal framework.
(a) Canadian Institutions
The British Columbia International
Commercial Arbitration Centre [33] appears to have been the most active of the Canadian
institutions in the administration of international arbitrations in Canada over
the past five years, having handled on average five international arbitrations
annually. Canadian and American parties have participated in those proceedings.
The Institute is working to expand the availability and visibility of its
services and facilities. It has recently adopted rules of procedure for
international arbitration that are intended to be simplified and user friendly.
The ADR Institute of Canada
[34] headquartered in
Kanata, Ontario, has been expanding its activities on both the domestic and
international fronts. It has concluded informal alliances with other
arbitration institutions. It continues to emphasize its activities in training
arbitrators and mediators and promoting their availability in Canada.
The Quebec National and
International Commercial Arbitration Centre [35] provides arbitration and mediation services and
training from its facilities in Quebec City and Montreal. It has agreements
with international arbitration and mediation organizations and is currently
available to provide international arbitration and mediation services in both
English and French.
ADR Chambers [36] has recently established ADR
Chambers International to expand its services in international arbitration and
mediation. Through its facilities in Toronto, ADR Chambers has successfully
administered over 6,000 mediations and 450 arbitrations. Through its
international division it is expanding its client and service base to include
dispute resolution proceedings that will involve some parties, counsel and
arbitrators who are not Canadian and it has enlarged its panel of experienced
international arbitrators and mediators.
(b) International Institutions
The London Court of International
Arbitration [37]
administers international arbitrations on a worldwide basis from its facilities
in London, England. Thirty-three Canadians are members of its arbitration panel
and Canadians are regularly selected to serve on arbitration panels.
The American Arbitration Association
[38] administers
thousands of arbitrations and mediations in the United States. It has a large
number of Canadians on its international roster and provides arbitration
facilities that are available to Canadian parties and counsel. It has provided
services in 39 countries through its roster of approximately 20,000 trained
neutrals.
The International Chamber of
Commerce [39] administers
international arbitrations in many languages worldwide. Canadians are often
parties to contracts providing that disputes will be resolved by arbitration
administered by the ICC. The ICC was created in 1923 and considers itself the
world’s leading institution for settling international commercial disputes
by arbitration. Members of the Canadian panel are eligible to be selected as
arbitrators and a Canadian is usually selected when a Canadian party is
involved.
The New York based CPR Institute for
Dispute Resolution [40] was
established in 1979 as a non-profit alliance of 500 international corporations,
law firms, and legal academics to encourage ADR in the dispute resolution
process. Its facilities are available to Canadian companies.
The Chartered Institute of
Arbitrators [41]
provides training in international arbitration and a large number of Canadians
have taken advantage of courses that have been organized by the institute in
North America.
VI. Conclusion
With the adoption of the Model Law
and the accession to the New York Convention, Canada, and its provinces, has
moved into the foreground as an attractive forum for international commercial
arbitration and the resolution of international disputes. It is hoped that this
paper, and the articles listed in the selected bibliography attached, will
provide assistance to parties seeking to arbitrate their international disputes
in Canada.
Selected Bibliography
Alvarez, Henri C., “Arbitration Under the North
American Free Trade Agreement” (2000), 16 Arbitration International
393.
Alvarez, Henri C., “A
Canadian Perspective on the Basic Aspect of International Commercial
Arbitration”, [unpublished].
Alvarez, Henri C., “The Role of
Arbitration in Canada – New Perspectives” (1987), 21 U.B.C. Law
Review 247.
Alvarez, Henri C., “Recent
Developments in the Area of Commercial Arbitration”, (paper presented at
the Canadian Bar Association Joint Meeting of the Alternate Dispute Resolution,
Business and Civil Litigation Sections held December 12, 1994).
Barbour, Alan Norman, Judicial
Respect for International Commercial Arbitration Agreements in Canadian Courts
Under the New York Convention and Uncitral Model Law (a thesis submitted in
partial fulfillment of the requirements of the Degree of Masters of Laws,
University of British Columbia, 1996).
Biukovic, Ljiljana, “Impact of the Adoption of
the Model Law in Canada: Creating a New Environment for International
Arbitration”, (1998), 30 Canadian Business Law Journal 376.
Brierley, John E.C.,
“Quebec’s New (1986) Arbitration Law” (1987-1988), 13
Canadian Business Law Journal 58
Castel, J-G., “Canadian and
International Arbitration” (1981), 36 The Arbitration Journal 5.
Chiasson, Edward C., “Canada: No Man’s
Land No More” (1986), 3 Journal of International Arbitration 67.
Chiasson, Edward C., “A
Precipice Avoided: Judicial Stays and Party Autonomy in International
Arbitrations” (1996), 54 The Advocate 63.
Coulson, Robert, “The Future of
International Commercial Arbitration” (1991), 17 Canada-U.S. Law
Journal 515.
Davidson, Paul J.,
“International Commercial Arbitration Law in Canada”, (1991), 12
Northwestern Journal of International Law & Business 97.
Dore, Isaak I., The Uncitral
Framework for Arbitration in Contemporary Perspective (London; Graham &
Trotman/Martinus Nijhoff, 1993).
Graham, William C., “The
Internationalization of Commercial Arbitration in Canada: a Preliminary
Reaction” (1987-88) 13 Canadian Business Law Journal 2.
Haigh, David R., Kunetzki, Alicia K.
and Antony, Christine M., “International Commercial Arbitration and the
Canadian Experience” (1995), 34 Alberta Law Review (No. 1) 137.
Kos-Rabcewicz-Zubkowski, Ludwik,
“International Commercial Arbitration Laws in Canada – Adaptation of
Uncitral Model Law on International Commercial Arbitration (1988), 5 Journal
of International Arbitration 43.
Kos-Rabcewicz-Zubkowski, Louis,
“Arbitration in Canada: A Second Look – International Commercial
Arbitration in the Common Law Provinces of Canada” (1989), 44 The
Arbitration Journal 14.
Mendes, Errol P., “Assessing
the Ultimate Question About International Commercial Arbitration; The
Enforcement of Foreign Arbitral Awards” (1992), 5 Canada – U.S.
Business Law Review 233.
Northcote, William L.,
“Default, Exparte and Want of Prosecution Proceedings in International
Commercial Arbitration” (1992), 14 Advocates’ Quarterly 319.
Paterson, Robert K.,
“Implementing the Uncitral Model Law – The Canadian Experience”
(1993), 10 Journal of International Arbitration 29.
Paterson, Robert K., “Canadian
Developments in International Arbitration Law: A Step Beyond Mauro
Rubino-Sammartan’s International Arbitration Law” (1991), 27
Willamette Law Review 573.
Paterson, Robert K., and Thomspon,
Bonita J., eds., UNCITRAL Arbitration Model in Canada: Canadian
International Commercial Arbitration Legislation, (Toronto; Carswell,
1987).
Pepper, Randy A., “Why
Arbitrate?: Ontario’s Recent Experience With Commercial Arbitration”
(1998), 36 Osgoode Hall Law Journal 805-807.
Potter, Richard B., “The Coming
of Age of the Uncitral Model Law in Canada” (1994-95), 24 Canadian
Business Law Journal 429.
Sanders, Pieter, “Unity and
Diversity in the Adoption of the Model Law” (1995), 11 Arbitration
International 1.
Tavender, E.D.D.,
“Considerations of Fairness in the Context of International Commercial
Arbitrations” (1996), 34 Alberta Law Review (No. 3) 509
Tetley, William, “Canadian
Arbitration Decisions 1986-1992” (1993), Lloyds Maritime and Commercial
Law Quarterly 238.
Weinstein, Stephen, “The
Emergence of International Commercial Arbitration in Canada” (1988), 43
The Arbitration Journal 3.
This paper is published at International
Commercial Arbitration in the New Millennium, Canadian Bar Association
2001, ISBN 1-894015-48-7 and is reproduced with permission of the Canadian Bar
Association"
Footnotes
Claude R.
Thomson is the former Chair of ADR Chambers International and former partner at
Fasken Martineau DuMoulin LLP, Toronto, Ontario.
Annie M. K. Finn is
an associate lawyer in Fasken Martineau DuMoulin LLP, Toronto, Ontario
[1]
1867 (U.K.) Chap. 3., as amended [hereinafter "Constitution Act"].
[2]
Paul J. Davidson, "International Commercial Arbitration Law in Canada", (1991),
12 Northwestern Journal of International Law & Business 97 at 99.
[3] See
discussion below.
[4] It
is important to note that nine of the ten provinces have a common law legal
system. The province of Quebec is a civil law jurisdiction. See applicable
legislation listed, infra, at footnote 6.
[5] The
Model Law was adopted by the United Nations Commission on International Trade
Law ("UNCITRAL") on June 21, 1985 by the General Assembly Resolution A/40/17,
40 G.A.O.R. Supp. No. 53, A/40/53. The Parliament of Canada adopted the Model
Law on June 17, 1986; it came into force on August 10, 1986: The Commercial
Arbitration Act, R.S.C. 1985, c. 17 (2nd Supp.).
[6] At
the federal level: Commercial Arbitration Act, R.S.C. 1985, c. 17 (2nd Supp.)
[hereinafter "federal Commercial Arbitration Act"]. At the provincial level:
International Commercial Arbitration Act, S.A. 1986, c. I-6.6 [hereinafter
"Alberta International Commercial Arbitration Act"]; International Commercial
Arbitration Act, R.S.B.C. 1996, c. 233 [hereinafter "British Columbia
International Commercial Arbitration Act"]; International Commercial
Arbitration Act, S.M. 1986-87, c. 32, Chap. C151; International Commercial
Arbitration Act, S.N.B. 1986, c. I-12.2; International Commercial Arbitration
Act, R.S.N. 1990, c. I-15; International Commercial Arbitration Act, R.S.N.W.T.
1988, c. I-6; International Commercial Arbitration Act, R.S.N.S. 1989, c. 234;
International Commercial Arbitration Act, R.S.P.E.I. 1988, c. I-5;
International Commercial Arbitration Act, S.S. 1988-89, c. I-10.2;
International Commercial Arbitration Act, R.S.O. 1990, c. I.9 [hereinafter
"Ontario International Commercial Arbitration Act"]; International Commercial
Arbitration Act, S.Y. 1987, c. 14; An Act to Amend the Civil Code and the Code
of Civil Procedure in Respect of Arbitration, S.Q. 1986, c. 73 [hereinafter
"Quebec Act to Amend the Civil Code and the Code of Civil Procedure"].
[7] See
applicable provincial legislation listed, supra, at footnote 6. Note that if
the parties are domestic, separate provincial arbitration legislation applies,
(see applicable provincial domestic arbitration legislation.)
[8]
See, for instance, a very thorough discussion of this topic in
Ljiljana Biukovic, "Impact of the Adoption of the Model Law in Canada: Creating
a New Environment for International Arbitration" (1998), 30 Canadian Business
Law Journal 376 at p. 381 and footnote 22.
[9] See
Quebec Act to Amend the Civil Code and the Code of Civil Procedure, supra, at
footnote 6. Note that the Quebec legislation applies to both domestic and
international arbitration and is not limited to commercial matters. See also
discussion of this topic in Paul J. Davidson, "International Commercial
Arbitration Law in Canada", supra, at p. 119-122.
[10]
Both Alberta and Ontario's modifications include adding a provision for the
purpose of encouraging settlement, that allows the arbitral tribunal, with
agreement of the parties, to use mediation, conciliation or other procedures at
any time during the arbitration and, with agreement of the parties, members of
the arbitral tribunal are not disqualified from resuming their roles as a
result, (Alberta International Commercial Arbitration Act, S. 5; Ontario
International Commercial Arbitration Act, S. 3).
[11]
(June 10, 1958, New York) 330 U.N.T.S. 38 (1958), No. 4738.
[12]
R.S.C. 1985, c. 16 (2nd Supp.).
[13]
For instance, Alberta, Manitoba, New Brunswick, Newfoundland, the
Northwest Territories, Nova Scotia, Prince Edward Island and Ontario, see
legislation listed, supra, at footnote 6. It should be noted that the Ontario
Foreign Arbitral Awards Act, 1986, S.O. 1986, c. 25 was repealed by the
International Commercial Arbitration Act, S.O. 1988, c. 30 s. 14 and replaced
by the Ontario International Commercial Arbitration Act. Section 10 of the
Ontario Act states that for the purposes of articles 35 & 36 of the Model
Law, an arbitral award includes a commercial arbitral award made outside
Canada. This provision effectively serves to implement the New York Convention
in Ontario. Note also that Quebec's Code of Civil Procedure, Book VII
"Arbitrations", Title II "Of Recognition and Execution of Arbitration Awards
Made Outside Quebec", article 948 states that the interpretation of this title
shall take into account the New York Convention. Also see discussion in
Ljiljana Biukovic, "Impact of the Adoption of the Model Law in Canada: Creating
a New Environment for International Arbitration", supra, at p. 379-381.
[14]
See for instance, British Columbia, Foreign Arbitral Awards Act, R.S.B.C. 1996,
c. 154; Saskatchewan, Enforcement of Foreign Arbitral Awards Act, S.S. 1996, c.
E-9.12; Yukon Territory, Foreign Arbitral Awards Act, R.S.Y. 1986, c. 70.
[15]
(1994), 12 B.L.R. (2d) 151 (Ont. Gen Div.), Blair J. [hereinafter
"Onex"]
[16]
(1988), 41 B.L.R. 296, [1988] O.J. 2839 (Ont. S.C - H.C.J.) [hereinafter "Boart
Sweden"].
[17]
(1999), 174 D.L.R. (4th) 385 (Ont. C.A.), [hereinafter "Lovat Tunnel"].
[18]
(1970), 11 D.L.R. (3d) 513 (Ont. C.A.) [hereinafter "McNamara"]
[19]
(1992), 4 C.P.C. (3d) 99, 87 D.L.R. (4th) 129, (Alb. C.A.), leave to appeal to
the Supreme Court of Canada refused (1992), 93 D.L.R. (4th) vii [hereinafter
"Kaverit Steel" ].
[20]
See for example, BMW Investments Ltd. v. Saskferco Products Inc. [1994] S.J.
629, 33 C.P.C. (3rd) 158 (Sask. C.A.)[hereinafter "BMW Investments"] where it
was held that nothing in the Alberta Builders' Lien Act, S.S. 1989-90, c. B-7.1
expressly or impliedly abrogated the right to use mechanisms, such as
arbitration, and there was no inconsistency between the arbitration agreement
of the parties and that Act.
[21]
See for instance Automatic Systems Inc. v. E.S. Fox Ltd., infra, and on
arbitration generally see the Quebec Court of Appeal decision in Condominums
Mont Saint-Sauveur Inc. v. Constructions Serge Sauvé Ltée [1990]
A.Q. No. 2052,(1990), R.J.Q. 2783 (Que. C.A.).
[22]
See for instance Automatic Systems Inc. v. E.S. Fox Ltd. (1995), 19 C.L.R. (2d)
35, [1995] O.J. No. 461 (Ont. Gen. Div. Commercial List).
[23]
(1990), 47 B.C.L.R. (2d) 201, 48 B.L.R. 32 (B.C.S.C.), upheld by the Court of
Appeal (1990), 50 B.C.L.R. (2d) 207, [1991] 1 W.W.R. 219 (B.C.C.A.), leave to
appeal denied (1990), 50 B.C.L.R. (2d) xxviii (S.C.C.) [hereinafter
"Quintette"].
[24]
See Dunhill Personnel System Inc. v. Dunhill Temps Edmonton Ltd. [1993] A.J.
No. 716, 13 Alta L.R. (3d) 241 (Alta Q.B.).
[25]
BMW Investments, supra.
[26]
(1999), 45 O.R. (3d) 183 (Ont. S.C.J.), Lax J. [hereinafter
"Corporacion Transnacional"], appeal dismissed (2000), 49 O.R. (3d) 414 (Ont.
C.A.).
[27]
(1992), 7 O.R. (3d) 608, 89 D.L.R. (4th) 365 (Ont. Gen. Div.).
[28]
See for instance Corporacion Transnacional, supra, at both the trial and
appellate level; and Murmansk Trawl Fleet v. Bimman Realty Inc. [1994] O.J.
3018 (Ont. Gen. Div.) Somers J.
[29]
See for instance Corporacion Transnacional, supra, at both the trial and
appellate level; and Murmansk Trawl Fleet v. Bimman Realty Inc. [1994] O.J.
3018 (Ont. Gen. Div.) Somers J.
[30]
For instance Chapter 19 of the NAFTA establishes tri-national panels to review
anti-dumping and countervailing duty law determinations made by domestic
judicial bodies of NAFTA Parties.
[31]
For a comprehensive discussion on this topic, see Henri C. Alvarez,
"Arbitration Under the North American Free Trade Agreement", (2000), 16:4
Arbitration International 391.
[32]
See discussion in Henri C. Alvarez, ibid, at pp 419-430.
[33]
British Columbia International Commercial Arbitration Centre - 1140-1090 West
Georgia Street, Vancouver, British Columbia, Canada, V6E 3V7; Phone (604)
684-2821; Fax (604) 684-2825; web site: www.bcicac.com
[34]
ADR Institute of Canada - 329 March Road, Suite 232, Box 11, Kanata, Ontario,
Canada, K2K 2E1; Phone (613) 599-0878; Fax (613) 599-7027; web site:
www.adrinstitute.ca
[35]
The Quebec National and International Commercial Arbitration Centre -
(Montreal) 1, Place Ville-Marie, Bureau 2825, Montreal, Quebec, Canada, H3B
4R4; Phone (514) 876-9002; Fax (514) 876-9003. (Quebec City) Edifice La
Fabrique, 295 Charest Blvd East, Suite 090, Quebec, Quebec, Canada G1K 3G8;
Phone (418) 649-1374; Fax (418) 649-0845; Toll Free: 1-877-909-3794; web site:
www.cacniq.org
[36]
ADR Chambers, 48 Yonge Street, Suite 1100, Toronto, Ontario, Canada, M5E 1G6;
Phone (416) 362-8555; Fax (416) 362-8825; web site:
www.adrchambers.com
[37]
LCIA, the International Dispute Resolution Centre, 8 Breams Buildings, Chancery
Lane, London EC4A 1HP, England; Phone +44 (0)20 7405 8008; Fax +44 (0)20 7405
8009; email: lcia@lcia-arbitration.com
[38]
American Arbitration Association - International Center - 1633 Broadway, 10th
floor, New York, New York, U.S.A. 10019-6708; Phone 888 855-9575; Fax 212
246-7274; Toll Free: 1 800 778-7879
[39]
International Chamber of Commerce - ICC International Court of Arbitration, 38,
Cours Albert 1er, 75008 Paris, France; Phone +33 1 49 53 28 28; Fax +33 1 49 53
29 33
[40]
CPR Institute for Dispute Resolution - 366 Madison Avenue, 14th floor, New
York, NY 10017-3122 U.S.A.; Phone (212) 949-6490; Fax (212) 949-8859
[41]
CPR Institute for Dispute Resolution - 366 Madison Avenue, 14th floor, New
York, NY 10017-3122 U.S.A.; Phone (212) 949-6490; Fax (212) 949-8859
