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Results: 4 Answers
International Arbitration
1.
Legal framework
1.1
What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?
 
Canada
Canada has a federal legal system and the legislation governing arbitration is primarily found at the provincial/territorial level (as opposed to the federal level). Each province has separate legislation for international and domestic arbitration.

With regard to international arbitration, each province and territory (with the exception of Quebec, discussed below) has adopted the UNCITRAL Model Law, with corresponding legislation to adapt the model law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration 1985 (Vienna: United Nations, 1985), adopted by Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Yukon, Nunavut and Northwest Territories (under Nunavut’s legislation); and United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration 1985, with Amendments as Adopted in 2006 (Vienna: United Nations, 2006), adopted by British Columbia and Ontario.) For instance, British Columbia and Ontario modified the model law to exclude interprovincial arbitration from its application (International Commercial Arbitration Act, RSBC 1996, c 233; International Commercial Arbitration Act, RSO 1990, c I-9). The provincial international arbitration acts require arbitration agreements to be in writing (International Commercial Arbitration Act, RSBC 1996, c 233; International Commercial Arbitration Act, RSA 2000, c 1-5; International Commercial Arbitration Act, SS 1988-1989, c I-10.2; International Commercial Arbitration Act, CCSM, c C-151; International Commercial Arbitration Act, RSO 1990, c I-9; Civil Code of Procedure, R.S.Q., c C-25 (as am.), Articles 940-952; Québec Civil Code, S.Q. 1991, c 64, Articles 2638-2643, 3121, 3133, 3148 and 3168; International Commercial Arbitration Act, SNB 1986, c I-12.2; International Commercial Arbitration Act, RSNS 1989, c 234; International Commercial Arbitration Act, 1988, c I-5; International Commercial Arbitration Act, RSN 1990, c I-15; International Commercial Arbitration Act, RSNWT 1988, c I-6; International Commercial Arbitration Act, RSY 2002, c 123).

All provinces and territories have enacted legislation governing domestic arbitration agreements, the appointment of arbitrators, and the conduct and jurisdiction of arbitral tribunals (Arbitration Act, RSA 2000, c A-43; Arbitration Act, RSBC 1996, c 55; Arbitration Act, CCSM c A120; Arbitration Act, RSNB 2014, c 100; Arbitration Act, RSNL 1990, c A-14; Arbitration Act, RSNS 1989, c 19; Arbitration Act, 1991, SO 1991, c 17; Arbitration Act, RSPEI 1988, c A-16; Arbitration Act, 1992, SS 1992, c A-24.1; Arbitration Act, RSNWT 1988, c A-5; Arbitration Act, RSY 2002, c 8; Civil Code of Procedure (RSQ, c C-25 (as am), Articles 940-952); Quebec Civil Code (SQ 1991, c 64, Articles 2638-2643, 3121, 3133, 3148 and 3168)). The legislation varies among provinces, particularly with respect to appeal rights and contracting-out of certain procedural provisions. Whether a domestic arbitration agreement must be in writing varies by province and context (for example, Newfoundland, Northwest Territories and Nunavut, Yukon, Prince Edward Island and Quebec require arbitration agreements to be in writing. Meanwhile, the relevant statutes in Ontario, Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan expressly state that arbitration agreements need not be in writing).

There is one federal statute, which is based on the UNCITRAL Model Law (Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp). This legislation applies only in relation to matters where at least one of the parties to the arbitration is the crown, a federal departmental corporation or a crown corporation, or in relation to a maritime or admiralty matter (International Commercial Disputes: A Guide to Arbitration and Dispute Resolution in APEC Member Economies (Singapore: APEC Secretariat, 1999)).

In Quebec, arbitration is governed by the Civil Code of Quebec (CCQ) and the Code of Civil Procedure (CCP). Although Quebec has not incorporated the model law, the relevant legal provisions in the CCP and in the CCQ are essentially in line with international conventions. The criteria for the validity and interpretation of an arbitration agreement are set out in Articles 2638 to 2642 of the CCQ and correspond to Sections 7(1) and 7(2) of the model law. The conduct of the arbitration is regulated by the CCP, which also covers the recognition and enforcement of the arbitration award. The provisions of the CCP apply when no agreement to the contrary has been concluded.

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
1.2
Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?
 
Canada
The legislation governing arbitration is primarily found at the provincial/territorial level (as opposed to the federal level), and is divided between international and domestic arbitration.

With regard to international arbitration, each province and territory has adopted the UNCITRAL Model Law and adapted it (Corporacion Transnacional de Inversiones, SA de CV v STET International, SpA, [1999] OJ No 3573, 45 OR (3d) 183 (Ont SCJ)).

In addition, each province has legislation which regulates domestic commercial arbitrations. These laws vary from province to province, particularly with respect to appeal rights, contracting-out of procedural provisions, the power of courts to issue a stay of proceedings, the consolidation of arbitration proceedings and the relationship between mediation and arbitration (Commercial Arbitration Act (RSC  1985, c 17 (2nd Supp)) (Canada); International Commercial Arbitration Act (RSBC 1996, c 233) (British Columbia); International Commercial Arbitration Act (RSA 2000, c 1-5) (Alberta); International Commercial Arbitration Act (SS 1988-1989, c I-10.2) (Saskatchewan); International Commercial Arbitration Act (CCSM, c C-151) (Manitoba); International Commercial Arbitration Act (RSO 1990, c I-9) (Ontario); Civil Code of Procedure (RSQ, c C-25 (as am), Articles 940-952); Quebec Civil Code (SQ 1991, c 64, Articles 2638-2643, 3121, 3133, 3148 and 3168) (Quebec); International Commercial Arbitration Act (SNB 1986, c I-12.2) (New Brunswick); International Commercial Arbitration Act (RSNS 1989, c 234) (Nova Scotia); International Commercial Arbitration Act (1988, c I-5) (Prince Edward Island); International Commercial Arbitration Act (RSN 1990, c I-15) (Newfoundland and Labrador); International Commercial Arbitration Act (RSNWT 1988, c I-6) (Northwest Territories, and Nunavut under the Nunavut Act (SC 1993 c 28, s 29); International Commercial Arbitration Act (RSY 2002, c 123) (Yukon Territory)).

The is based on the UNCITRAL Model Law (Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp). This legislation applies only in relation to matters where at least one of the parties to the arbitration is the crown, a federal departmental corporation or a crown corporation, or in relation to a maritime or admiralty matter (Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp) at Article 5(2)).

In Quebec, Chapter VIII of the CCP provides that international trade interests are considered to be involved in arbitration proceedings in certain circumstances.

If international trade interests, including interprovincial trade interests, are involved in arbitration proceedings, consideration may be given, in interpreting Chapter VIII of the CCP, to the model law, its amendments and certain related documents.

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
1.3
Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?
 
Canada
Yes, international arbitration legislation in Canada and its provinces and territories is modelled on the UNCITRAL Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration 1985 (Vienna: United Nations, 1985), adopted by Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Yukon, Nunavut and Northwest Territories (under Nunavut’s legislation); and United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration 1985, with Amendments as Adopted in 2006 (Vienna: United Nations, 2006), adopted by British Columbia and Ontario).

The one federal statute is based on the UNCITRAL Model Law (Commercial Arbitration Act, RSC1985, c 17 (2nd Supp)). This legislation applies only in relation to matters where at least one of the parties to the arbitration is the crown, a federal departmental corporation or a crown corporation or in relation to a maritime or admiralty matter (Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp) at Article 5(2)).

In June 1986 Canada became the first country to adopt the UNCITRAL Model Law.

Although the Quebec legislature did not choose to adopt the model law in 1986, when the Quebec legislature introduced a complete reform of the arbitration provisions of the CCP, the substance of several concepts was incorporated into the legislation, which is more compatible with the style of the civil law tradition. At the time of their adoption, Quebec’s National Assembly made it very clear that these concepts would constitute the “faithful reflection” of the model law. In principle, it is therefore important always to interpret the rules relating to conventional arbitration in force in Quebec, taking into account the relevant transnational sources.

In 2016, while the latest reform of the CCP was taking place, the Quebec legislature maintained its position by choosing to not adopt the model law, but nevertheless reflected its concepts in the drafting of the legislation.

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
1.4
Are all provisions of the legislation in your jurisdiction mandatory?
 
Canada
Not all provisions of the various arbitration legislation are mandatory. Generally, parties are free to define the nature and scope of disputes they wish to have determined by arbitration and the procedure to be followed. However, there are certain mandatory requirements of any arbitration seated in a Canadian jurisdiction. For example, the parties must be treated equally and be given a full opportunity to present their cases (Arbitration Act, RSA 2000, c A-43, ss 3, 19; Arbitration Act, SM 1997, c 4, CCSM, c A120, ss 3, 19; Arbitration Act, 1991, SO 1991, c 17, ss 3 [rep & sub 2006, c 1, s 1(3)], 19; Arbitration Act, 1992, SS 1992, c A-24.1, ss 4(b), 20).

Article 6 of the CCP enshrines the principle that the applicable procedure is primarily the responsibility of the parties and the third party involved. However, the rules of Title II, "Arbitration" of Book VII, ¡§Private Modes of Conflict Prevention and Resolution¡¨ of the CCP supplement (if necessary) the choices of the parties. In that regard, Article 622 of the CCP provides that the parties cannot, through their agreement, depart from the provisions of Title II which determine the jurisdiction of the court, or from those relating to the application of the adversarial principle or the principle of proportionality, the right to receive notification of a document, or the homologation or the annulment of an arbitration award.

Other issues from which parties cannot derogate include the procedure for the appointment of arbitrators, their dismissal and recognition by the court of their jurisdiction. The chapters relating to court approval and the application for annulment of the arbitration award are of public policy (the CCQ uses the term 'public policy'). Article 643 of the CCP, which provides that the judge may make an order to safeguard the rights of the parties in the context of a request for rectification of the arbitration award, is also of public policy. These public policy provisions are put in place to ensure the independence and impartiality of the arbitrators - essential elements to a fair and equitable judicial procedure.

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
1.5
Are there any current plans to amend the arbitration legislation in your jurisdiction?
 
Canada
As of September 2018, there are no bills in any of the provincial or territorial legislative assemblies that would amend any of the arbitration acts. Federally, Bill C-79 was at its first reading as of 14 June 2018. It would amend the Commercial Arbitration Act to incorporate reference to the Trans-Pacific Partnership Agreement.

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
1.6
Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?
 
Canada
Canada is a signatory to the New York Convention. The provincial legislatures and the federal Parliament have enacted legislation to apply the New York Convention to commercial relationships, other than in Quebec, where no such limitation applies.

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
1.7
Is your jurisdiction a signatory to any other treaties relevant to arbitration?
 
Canada
In November 2013 Canada ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Pierre Bienvenu and Martin Valasek, Arbitration Guide: Canada (Montreal: IBA Arbitration Committee, February 2018) (pdf)).

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP