Answer ... Under Canada’s federal arbitration legislation, an international arbitration agreement must be in writing (Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp), Sched 1, art 7(2) [renumbered 2012, c 26, s 25]). The right to arbitration and the binding force of arbitral awards are contractual obligations based on the mutual intention and agreement of the parties. The principles of formation and interpretation of contract apply (UNCITRAL Model Law, Article 7(2)).
The UNCITRAL Model Law, which forms the basis for provincial international arbitration legislation, requires an arbitration agreement to be in writing in one of the following forms (UNCITRAL Model Law, Article 7(2)):
- a document signed by the parties;
- an exchange of letters, telex, telegrams or other means of telecommunication that provide a record of the agreement; or
- an exchange of pleadings in which the existence of an agreement is alleged and not denied.
The 2006 amendments to the UNCITRAL Model Law specifically provide that the requirement that an arbitration agreement be in writing can be met by electronic communication (2006 Amendments to UNCITRAL Model Law, Article 7(4)). In other words, the arbitration agreement can be concluded orally, by conduct or by other means, provided that its content is recorded. The requirement that the agreement be in writing can be met through the use of electronic communications, including electronic mail.
In relation to domestic arbitration, the formal requirements are set out in provincial legislation. Agreement to arbitrate is required – in some provinces, agreements need not be in writing, whereas in others, written agreements are required (Arbitration Act (Alberta), RSA 2000, c A-43, ss 1, 2; Arbitration Act (British Columbia), RSBC 1996, c 55, ss 1, 2; Arbitration Act (Manitoba), CCSM c A120, ss 1, 2; Arbitration Act (New Brunswick), RSNB 2014, c 100, ss 1, 2; Arbitration Act (Newfoundland and Labrador), RSNL 1990, c A-14, ss 2, 3; Arbitration Act (Nova Scotia), RSNS 1989, c 19, ss 2, 4; Arbitration Act, 1991 (Ontario), SO 1991, c 17, ss 1, 2; Arbitration Act (Prince Edward Island), RSPEI 1988, c A-16, ss 2, 4; Civil Code of Quebec, CCQ-1991, art 2638; Arbitration Act, 1992 (Saskatchewan), SS 1992, c A-24.1, ss 2, 3; Arbitration Act (Northwest Territories), RSNWT 1988, c A-5, ss 1, 2; Arbitration Act (Yukon), RSY 2002, c 8, ss 1, 2). In Ontario, for example, an arbitration agreement need not be in writing.
The key to a valid multi-party arbitration agreement is the consent of all of the parties involved, ideally within the same arbitration agreement. The fact that a number of parties have signed similar contracts for the same project, each containing an identical arbitration clause, may not be sufficient to demonstrate consent to a single arbitration. The arbitration agreement should also provide clearly for multi-party arbitrations in order to ensure one consolidated proceeding (Pierre Bienvenu and Martin Valasek, Arbitration Guide: Canada (Montreal: IBA Arbitration Committee, February 2018) (pdf)).
In Quebec, the Civil Code of Quebec (CCQ) specifies that an arbitration agreement shall be evidenced in writing. Section 2640 of the CCQ provides that the arbitration agreement is deemed to be evidenced in writing if it is contained in an exchange of communications which attests to its existence or in an exchange of proceedings in which its existence is alleged by one party and is not contested by the other party.