50 LEXPERT MAGAZINE
|
OCTOBER 2017
FEATURE
FOR MOST LARGE COMPANIES
involved in cross-border contracts, International
Commercial Arbitration is the preferred means of dispute resolution, due to the certainty
that arbitration agreements will be respected by domestic courts and awards will be en-
forceable. With the exceptions of Ontario and Québec, however, the Canadian provinces
have arguably failed to keep their statutes relating to International Commercial Arbitra-
tion up to date compared to other jurisdictions that companies might choose.
e key legal instrument is the New York Convention on the Recognition and En-
forcement of Foreign Arbitral Awards, to which Canada has been a party since 1986. e
New York Convention requires that contracting states give effect to private agreements to
arbitrate disputes, and to recognize and enforce arbitral awards on a reciprocal basis with
other contracting states.
e United Nations Commission on International Trade Law (UNCITRAL)'s Model
Law on International Commercial Arbitration complements the Convention. It is an
archetype law that can be adopted domestically by states in order to harmonize legal re-
gimes governing International Commercial Arbitration across jurisdictions. Under the
Model Law, says Pierre Dalphond, a senior counsel at Stikeman Elliott LLP in Montréal
and former senior judge of the Québec Court of Appeal, "International Commercial Ar-
bitration is a completely independent system.
"e final award cannot be reviewed by a court of law on either a question of law or of
fact. ere are very limited grounds pursuant to which you can have an award set aside or,
if the award is rendered in another country, have the Canadian court refuse to enforce it."
As a multicultural, bilingual nation with
civil and common law jurisdictions, Canada
should be a natural hub for International
Arbitration. So why isn't it? Recent provincial
amendments aim to make it so
BY SHELDON GORDON
HARMONY
COMMERCIAL ARBITRATION
INTERNATIONAL
PHOTO:
SHUTTERSTOCK
