52 LEXPERT MAGAZINE
|
OCTOBER 2017
| INTERNATIONAL COMMERCIAL ARBITRATION |
Sarah Armstrong, a partner at Fasken
Martineau DuMoulin LLP in Toronto,
says two recent cases — Sattva Capital v.
Creston Moly (2014 SCC 53) and Novatrax
International v. Hägele Landtechnik (2016
ONCA 771) — confirm "that in our legal
system, our courts take very seriously the
rights of parties to have their disputes adju-
dicated outside of court, and they'll respect
that decision of the parties."
So whether it is a matter of decisions
limiting the scope of rights of appeal (Sat-
tva) or limiting the ability of parties to go
to court when they originally agreed to ar-
bitration (Novatrax), "outsiders looking at
our system would generally read these de-
cisions as being supportive of a system that
respects arbitration and parties' agreement
to arbitrate," says Armstrong.
In recent years, the Uniform Law Con-
ference of Canada (ULCC) has been en-
couraging the provinces and territories to
harmonize their International Commer-
cial Arbitration statutes on the basis of the
UNCITRAL Model Law, 2006 version.
"It is important to Canada's continued suc-
cess in presenting itself to foreign users that
as far as possible the provinces and territo-
ries implement international arbitration
legislation that is uniform in both form
and substance, as a diversity of approaches
among jurisdictions within Canada may
deter foreign users," said the ULCC Report
of the Working Group on New Uniform
Arbitration Legislation, issued in 2014.
If the laws were to be harmonized
to be one of the very pressing areas where
we could use harmonization, like the secu-
rities laws, for example."
Ontario
Ontario is the province that has most re-
cently updated its legislation governing In-
ternational Commercial Arbitration. e
current iteration of its International Com-
mercial Arbitration Act came into force on
March 22, 2017, replacing the one in force
since 1990. e purpose of the legislation is
to set basic norms for the ways in which In-
ternational Commercial Arbitrations are
conducted in Ontario as well as the treat-
ment of resulting arbitral awards by Ontar-
io courts. In essence, Ontario's new ICAA
appends both the New York Convention
and the 2006 Model Law.
e Alberta government has also ap-
pended the Convention and the 1985
Model Law to its statute. British Columbia
and Québec, in contrast, have taken provi-
sions from the Convention and the Model
Law and incorporated them into their
statutes, sometimes amending the provi-
among provincial and territorial jurisdic-
tions, "Canada in general would become
a more attractive space for International
Arbitration," says Shara Roy, a partner at
Lenczner Slaght Royce Smith Griffin LLP
in Toronto.
Harmonization sends the right signals
to the rest of the world, says Dalphond.
"Parties want to have a seat which is neu-
tral, efficient and where the courts won't
mingle with the process. We are not big
players on the world stage in this compared
to New York, Paris, London or even Stock-
holm. Canada is now trying to position
itself. It's worthwhile doing, but we should
have done it before. Canada has a niche:
we're bilingual and bi-juridical, with both
common law and civil law."
However, Craig Dennis, a partner at
Dentons Canada LLP in Vancouver, says
harmonization need not be a high priority.
"I'm not sure uniformity among the Cana-
dian jurisdictions is a huge factor in decid-
ing on Vancouver or Toronto as a venue for
International Commercial Arbitration."
Armstrong agrees: "It doesn't seem to me
PHOTO:
SHUTTERSTOCK
PIERRE DALPHOND
STIKEMAN ELLIOTT LLP
"Canada is
now trying to
position itself [as
an international seat
of arbitration]. It's
worthwhile doing, but
we should have done
it before. Canada has
a niche: we're bilingual
and bi-juridical, with
both common law
and civil law."
