Comparative Guides
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Results: 4 Answers
International Arbitration
4.
Objections to jurisdiction
4.1
When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?
 
Canada
Typical objections to jurisdiction are based on arguments that the subject matter of the dispute is not arbitrable because it falls outside the scope of the arbitration agreement or because of public policy. Canadian jurisdictions recognise the competence-competence principle, which provides that the arbitral tribunal has the authority to determine its own jurisdiction, making the arbitral tribunal the first port of a call for a jurisdictional objection. The court can then determine whether the dispute is arbitrable (United Mexican States v Cargill, Inc, [2011] OJ No 4320 at para 45, 2011 ONCA 622 (Ont CA), citing Dunsmuir v New Brunswick, [2008] SCJ No 9 at para 59, 2008 SCC 9 (SCC)).

Time limits to make jurisdictional objections will depend on the local procedural rules. For example, Ontario legislation provides no specific time limit beyond the UNCITRAL Model Law’s requirement that the application be brought no later than when submitting a first statement on the substance of the dispute. A party will be considered to have waived its right to ask for a stay of proceedings when submitting its first statement on the substance of the dispute (UNCITRAL Model Law, Article 8).

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
4.2
Can a tribunal rule on its own jurisdiction?
 
Canada
A tribunal can rule on its own jurisdiction. The competence-competence principle is applicable in Canada ([2011] 1 SCR 531, at para 114).

For more information about this answer please contact: Mark Gelowitz from Osler, Hoskin & Harcourt LLP
4.3
Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?
 
Canada
Court review of jurisdiction is governed by the applicable arbitration legislation. The domestic acts and the UNCITRAL Model Law provide for court review of the arbitrator’s decision that he or she has jurisdiction to conduct the arbitration. This includes jurisdiction over the entire substance of the case. A party cannot go directly to the courts with a challenge; it must first apply to the tribunal. If unsuccessful, the party may then request, within 30 days, that a court decide the matter (J Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed (Huntington: JurisNet, LLC, 2017) p 424). In international arbitration, challenging the tribunal’s jurisdiction should generally be done before the first submission of the respondent. Challenging the scope of the tribunal’s authority must be done as soon as the subject matter is raised during the proceedings (UNCITRAL Model Law, Article 16(2)).

With regard to the domestic acts, a party that wishes to challenge the tribunal’s jurisdiction must make the objection by the beginning of the hearing or, if there is no hearing, no later than the first occasion on which the party submits a statement to the tribunal. If a party has an objection during the proceeding, it must make it known as soon as possible, keeping in mind that the tribunal will then decide its jurisdiction. A party will have the right to make an application to the court to decide the matter while the arbitration is proceeding only if the tribunal rules on the objection as a preliminary question (J Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed (Huntington: JurisNet, LLC, 2017) p 424).

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