09 Oct 2023
What does the arbitration landscape look like in your jurisdiction?
1. Canada is a federal state with ten Provinces[1] and three Territories[2]. All the Provinces and Territories are common law jurisdictions except Québec, which has a civil law system.
2. Under the Canadian federal system, the Provinces have exclusive jurisdiction over matters concerning property and civil rights.[3] As a result, Provincial statutes govern the vast majority of international commercial arbitrations seated in Canada, with Federal legislation only applying to arbitrations where the Federal Government is a party, or to maritime and admiralty matters.[4]
3. For international commercial arbitrations, all the common law Provinces, the Territories, and the Federal Government have adopted the UNCITRAL Model Law[5] [6] and the New York Convention.[7] In the case of Québec, its international arbitration laws are found in the Civil Code of Québec and in the Code of Civil Procedure. They incorporate the substance, rather than the wording, of the UNCITRAL Model Law and the New York Convention in legislative provisions that are more in line with its civil law tradition.[8]
Are there any acts or pieces of legislation in existence that are being updated or questioned?
4. British Columbia and Ontario are the only Provinces that have updated their international arbitration statutes to take into account the 2006 amendments to the UNCITRAL Model Law.[9] Ontario’s legislation is based on a proposed model Uniform International Commercial Arbitration Act, created by the Uniform Law Conference of Canada for adoption by the legislatures.[10] It is the only Province to have done so. In 2019, the Alberta Law Reform Institute issued a report where it reviewed the Uniform International Commercial Arbitration Act and recommended the adoption of it in Alberta.[11] It has not been adopted by Alberta to date.
5. In 2021, the Arbitration Act Reform Committee of the Toronto Commercial Arbitration Society issued a report that recommended replacing Ontario’s current international and domestic arbitration legislation with a single new act, the Commercial Arbitration Act, based on the 2006 Model Law that would apply to both foreign and domestic commercial arbitration.[12] The Report appends a proposed draft of the integrated act.[13]
6. Over the past five years legislation for prompt-payment adjudication systems for disputes in the construction industry has been introduced in some Provinces in Canada, including Ontario, Saskatchewan and Alberta. Other Provinces are considering similar legislation
Are there other recent developments of note?
7. Outside of legislative initiatives outlined above, the Vancouver International Commercial Arbitration Centre (“VanIAC”) has recently issued updated international arbitration rules, which include, among other things, expedited procedures and provision for emergency relief.[14]
Do you see any issues in the court system and areas where dispute resolution can make a difference?
8. The courts in Canada, like those elsewhere, are still trying to recover from a COVID backlog that exacerbated existing delays for civil cases in the systems. The seriousness of this issue was highlighted in a report published this year by the Advocates’ Society.[15] Arbitral organizations like the Chartered Institute of Arbitrators have a role to play in educating counsel and parties on the availability and benefits of arbitration for the timely resolution of commercial disputes.
About the author: Julie Hopkins FCIArb is Chair of Ciarb Canada Branch. She is an independent commercial arbitrator based in Calgary, Alberta. Before becoming an arbitrator, Julie practised at a national law firm for over 26 years. She is experienced across a variety of industries, including electricity generation and transmission, oil and gas (including oils ands, pipelines and liquefied natural gas), construction, aviation, trucking, real estate development, cannabis, health care, as well as shareholder and franchise disputes. Julie is on the rosters of a number of institutions and is an experienced sole arbitrator, co-arbitrator and chair.
Further perspectives on dispute resolution from the Ciarb Branch network:
[1] Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec, and Saskatchewan.
[2] Northwest Territories, Nunavut, and Yukon.
[3] Section 92(13) Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.).
[4] Section 5(2) Commercial Arbitration Act (RSC, 1985, c. 17 (2nd Supp)).
[5] The Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on 21 June 1985.
[6] International Commercial Arbitration Act, RSA 2000, c I-5; The International Commercial Arbitration Act, SS 1988-89, c I-10.2; The International Commercial Arbitration Act, CCSM c C151; International Commercial Arbitration Act, RSNL 1990, c I-15; International Commercial Arbitration Act, RSPEI 1988, c I-5; International Commercial Arbitration Act, RSNB 2011, c 176; International Commercial Arbitration Act, RSNS 1989, c 234; International Commercial Arbitration Act, RSNWT (Nu) 1988, c I-6; International Commercial Arbitration Act, RSNWT 1988, c I-6; International Commercial Arbitration Act, RSY 2002, c 123; Federally: Commercial Arbitration Act (RSC, 1985, c. 17 (2nd Supp).
[7] The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted by the United Nations Conference on International Commercial Arbitration in New York on 10 June 1958.
[8] These provisions were intended, however, to be an accurate reflection ("le reflet fidèle") of the Model Law (Québec, Assemblée nationale, Journal des débats (30 octobre 1986) à la p. 3674): Frédéric Bachand, “Consensual Arbitration in Quebec”: https://www.mcgill.ca/arbitration/sources.
[9] The Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on 21 June 1985, as amended by the United Nations Commission on International Trade Law on 7 July 2006.
[10] In 2014, the Uniform Law Conference of Canada proposed a new Uniform International Commercial Arbitration Act which attached the New York Convention as Schedule I and the 2006 Model Law as Schedule II adopting all the 2006 Model Law amendments except for Article 7 Option II (which does not require an arbitration agreement to be in writing to be valid). It also establishes a ten-year limitation period for the recognition and enforcement of foreign international commercial arbitration awards.
[11] https://www.alri.ualberta.ca/wp-content/uploads/2020/03/FR114.pdf