Lexpert US Guides

www.lexpert.ca/usguide | LEXPERT • June 2019 | 17 In the Trump era, Canada's relative openness is particularly appealing. " ese days, it can be hard to get wit- nesses into the US," says Tina Cicchetti, an independent resident neutral at Vancouver Arbitration Chambers and a member arbi- trator at Arbitration Place. As it turns out, Canadian courts are about as arbitration-friendly as they come. And that matters, because the seat of arbitration governs an arbitral pro- ceeding's oversight. "So even if parties haven't chosen Cana- dian federal or provincial law as the govern- ing law for their dispute, an award made at an arbitration held in Toronto or elsewhere released as well as the rules that Ontario courts use to recognize and enforce foreign arbitral awards. Other Ontario decisions indicative of the deference shown to arbitration awards generally are Consolidated Contractors Group v. Ambatovy and Trade Finance Solution v. Equinox Global Limited (Take Two). And in 2017, the Supreme Court of Canada chimed in with its decision in Sattva Capital Corp. v. Creston Moly Corp., holding that leave to appeal an arbitral award will be granted only on questions of law and not on questions of mixed fact and law. As Keefe points out, it's not that US courts aren't arbitration-friendly. "But the US system, including all the judges and lawyers, have a far more litigation-oriented culture than we have in Canada, and that can adversely affect the conduct of arbitrations," Keefe says. "When choosing between Canada and the US, Canada is a more sensible and more neutral venue that has less risk associated with its legal system." By way of example, Keefe cites a re- cent arbitration involving a Colombian mining property that had no US parties but was seated in New York as a matter of convenience. "We found ourselves caught up in pro- ceedings where someone was asking a New York judge to impose a freezing order on assets outside of the US," Keefe recalls. "at just wouldn't happen in Canada, where the risk of that kind of judicial in- tervention is much lower." Canadian courts' disinclination to in- terfere with arbitration proceedings and awards are mirrored in recent legislative measures, particularly in Ontario, which recently updated its International Com- mercial Arbitration Act. e new regime came into force in March 2017, replac- ing a statute that had not been amended since 1990. At its core, the legislation, which incor- porates the New York Convention and the 2006 Model Law, sets basic principles for the conduct of international arbitration and delimits the extent to which courts can review awards. e upshot is that Ontario gave up its dubious status as the only Canadian juris- diction that had not explicitly incorporat- in Canada means that a Canadian court will deal with issues such as challenges to the awards, the removal of arbitrators or in fact any issue that calls for the courts' in- volvement," says John Keefe of John Keefe Chambers, a resident arbitrator at Arbitra- tion Place. "Both the Supreme Court of Canada and the provincial superior courts have been very arbitration friendly and taken a decidedly hands-off approach to meddling in arbitration matters." A recent example is the September 2018 decision of the Ontario Court of Appeal in Popack v. Lipszyc, in which the court reinforced the binding nature of arbitral awards from the moment the award is

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