Lexpert Magazine

LEXPERT MAGAZINE | OCTOBER 2017 55 | INTERNATIONAL COMMERCIAL ARBITRATION | and what powers an arbitrator has to grant such relief. Modernization of the BC statute "re- mains on the table," says Dennis, "but where it falls on the range of priorities of the new NDP government remains to be seen." He says any strategy to make Van- couver a preferred seat must include an ed- ucational or marketing component as well as the legislative update. "An Asian client will more naturally default to Singapore or Hong Kong, be- cause they know those places better, says Dennis. His "anecdotal impression" is that the growth of the BC International Com- mercial Arbitration Centre in Vancouver as an arbitral institution has been less than hoped. "Even the Centre's name maybe should be changed because Vancouver, as a brand, is better known in Asia than is BC." Alberta Alberta in 2000 amended the Arbitration Act, for domestic arbitration matters, and the International Commercial Arbitration Act, for International Commercial Arbi- tration matters. Alberta, like Ontario, ap- pends to the latter the Convention and the Model Law. However, it has not updated the Model Law to its 2006 version from the 1985 ver- sion. "I think there's a chance [the newer Model Law will be adopted] but govern- ment tends to move slowly in these things, not only in our jurisdiction but elsewhere," says Michael McCachen, a partner at Blake, Cassels & Graydon LLP in Calgary. Calgary, says McCachen, is trying to promote itself as a legal seat for Interna- tional Commercial Arbitration, especially for the energy sector. "We've personally seen that convincing foreign investors that they will have a predictable dispute-reso- lution mechanism here in Canada is very important." Saskatchewan Saskatchewan proclaimed its International Commercial Arbitration Act in 1988, ap- pending the 1985 Model Law. "It hasn't substantively changed since 1988," says Christopher Masich, a partner at McK- ercher LLP in Saskatoon. He is unaware of any plans by the Saskatchewan government to update its statute. Saskatchewan is an "export-dependent province. For us as practitioners to not have an International Commercial Arbitration law that adopts best practices to provide business certainty to international com- mercial transactions, it puts us behind the rest of Canada and a lot of other states that have adopted the 2006 amendment." e ruling of the Saskatchewan Court of Appeal in Greer v. Babey (2016 SKCA 45) provides recent case law on interna- tional commercial arbitration in the prov- ince. e trial judge had refused to refer a dispute to arbitration as it would result in a multiplicity of proceedings. (ere was an action filed with the Court of Queen's Bench in Saskatchewan for portions of the parties' interactions not covered by the ar- bitration agreement.) On appeal, this decision was overturned; the concern with a multiplicity of proceed- ings was no longer a relevant factor in re- fusing to refer matters to arbitration as described in Article 8(1) of the Model Law. Nova Scotia Nova Scotia adopted its International Commercial Arbitration Act in 1986, ap- pending the New York Convention and the 1985 Model Law to the statute. In a carve-out from the Model Law, the Nova Scotia statute says that if the parties fail to designate what law applies, the arbitral tri- bunal shall apply the rules of law it consid- ers appropriate in the circumstances. e kind of modernization initiatives completed in Ontario and Québec, and ongoing in BC, has apparently not even been started in Nova Scotia. "I think there is a need, at a minimum, to bring the legis- lation up to date with the underlying law that it purports to adopt," says John Keith, a partner at Cox & Palmer in Halifax. e limitation period to enforce an In- ternational Commercial Arbitration de- cision in Nova Scotia is governed by the SCC's 2010 decision in Yugrane Corp. v. Rexx Management (2010 SCC 19). "Based on that decision, the applicable limitation period depends largely upon whether the arbitral award was rendered in a reciprocating jurisdiction under the Reciprocal Enforcement of Judgements Act," says Keith. "So, it is somewhat of a moving target." Sheldon Gordon is a business and legal-affairs writer in Toronto. Arbitral Institutions 101 A WELL-WRITTEN CLAUSE IS CRUCIAL FOR DETERMINING THE PROCESS Cross-border contracts usually include an arbitration clause setting out provisions for international commercial arbitration in the event of a dispute. The clause often stipulates the legal "seat" of the arbitration, which country's laws will apply, and the venue where hearings will be held. The parties often opt to hold the hearings under the auspices of a large, expe- rienced arbitral institution, e.g., the International Chamber of Commerce, based in Paris; the London Court of International Arbitration, based in London; or the International Centre for Dispute Resolution, which is the international arm of the American Arbitration Association. Regional institutions also do cross-border arbitration, e.g., the Hong Kong International Arbitration Centre, the Singapore International Arbitration Centre, the Arbitration Institute of the Stockholm Chamber of Commerce, Ontario-based Arbitration Place and Vancouver-based British Columbia International Commercial Arbitration Centre. The choice of institution does not determine the "seat" of arbitration. For ex- ample, the ICC Court of Arbitration is based in Paris, but only one-third of ICC ar- bitration hearings actually take place in that city. The rest are held at ICC-related venues in over 60 countries, including Canada. Sometimes parties to a dispute opt for ad hoc arbitration, meaning no institu- tion administers the proceedings. UNCITRAL Model Law rules are usually used for disputes where no arbitral institution is involved. Most of the international commercial arbitration conducted in Canada is ad hoc, as the parties prefer to avoid the fees charged by the institutions for managing the administrative aspects of the arbitration.

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