Arbitrations seated in Canada are regulated primarily by provincial rather than federal legislation. Each of Canada’s provinces, except for Quebec, has enacted legislation adopting the UNCITRAL Model Law. In Quebec, the Civil Code and Code of Civil Procedure are consistent with the UNCITRAL Model Law.
In addition, each province has legislation to regulate domestic commercial arbitration. The law varies from province to province, particularly on issues such as appeal rights and contracting-out of procedural provisions. There are also differences among provincial jurisdictions concerning the:
- Power of courts to stay court proceedings in favour of arbitration.
- Consolidation of arbitration proceedings.
- The relationship between mediation and arbitration.[1]
In Quebec, arbitration is prohibited in certain situations, such as for family disputes (divorce, child custody, support payments, etc.) and protective regimes (tutorship and curatorship).[2]
The provincial legislatures and the Federal Parliament have also enacted legislation to implement the New York Convention.[3]
The statutes dealing with the enforcement or administration of international arbitral proceedings in Quebec are the following: Civil Code of Procedure (R.S.Q., c. C-25 (as am.), Articles 940-952);[4] Quebec Civil Code (S.Q. 1991, c. 64, Articles 2638-2643, 3121, 3133, 3148 and 3168).[5]
Canadian Courts v. Arbitration
The advantages of arbitration over litigation before Canadian courts include that (i) litigants can select a neutral and mutually acceptable forum, (ii) they can select procedural rules that are adequate to the dispute and (iii) the enforcement of arbitral awards is facilitated by the New York Convention.
The concepts of separability and kompetenz-kompetenz are well-recognised in Canadian jurisprudence. The Supreme Court recently considered the division of responsibility between the arbitral tribunal and the court for determining whether a dispute should be arbitrated. Generally, challenge to the arbitrator’s jurisdiction must be resolved first by the arbitrator.[6] The court held that a departure from that rule should be made only if both (i) the challenge is based solely on a question of law and (ii) the court is satisfied that the challenge is not a delaying tactic and will not unduly impair the conduct of the arbitration.
Arbitration Organizations in Canada
The ADR Institute of Canada (ADRIC)[7] has adopted the National Arbitration Rules relating to domestic disputes, and it administers arbitrations under these Rules from its headquarters in Toronto, or through regional affiliates. The ADRIC also trains arbitrators and mediators, and grants accreditations.
The Institut de médiation et d’arbitrage du Québec (IMAQ)[8] is affiliated with the ADRIC. It promotes and develops participatory justice such as arbitration, mediation and other methods of alternative dispute resolution.
The International Chamber of Commerce (ICC) is active in Canada through the Arbitration Committee of the Canadian Chamber of Commerce, which acts as the National Committee for the ICC in Canada.[9]
Moreover, arbitrations between Canadian and US parties are often administered by the American Arbitration Association (AAA), through the International Centre for Dispute Resolution in New York (ICDR).[10]
Also, the London Court of International Arbitration (LCIA) administers some arbitrations seated in Canada.[11]
All these international institutions also frequently appoint Canadian persons as arbitrators in disputes not involving Canadian parties.
[1] Lawrence E. Thacker, Arbitration procedures in Canada: overview, Practical law Country Q&A Guide
[3] http://www.newyorkconvention.org/countries
[4] http://legisquebec.gouv.qc.ca/en/showdoc/cs/C-25.01
[5] http://legisquebec.gouv.qc.ca/en/showdoc/cs/CCQ-1991
[6] Dell Computer Corp v Union des consommateurs 2007 SCC 34
[7] www.adric.ca
[8] www.imaq.org
[9] www.chamber.ca
[10] https://www.adr.org/
