LEXPERT MAGAZINE
|
OCTOBER 2017 53
| INTERNATIONAL COMMERCIAL ARBITRATION |
sions in the process. "I see the Ontario and
Alberta approach as less complicated and
potentially more appealing to outsiders
coming in," says Armstrong.
Ontario's approach facilitates matters by
showing that which is included and not,
without having to do a line-by-line com-
parison between the provincial legislation
and the international regime, says Roy.
was the only Canadian jurisdiction with-
out legislation that explicitly incorporated
the New York Convention.
"Previously," says Roy, "it was inferred
that the New York Convention was ap-
plicable in Ontario by virtue of section 10
of the previous version of the Ontario Act,
which said that an arbitral award includes
an award made outside of Canada. Now
the new legislation formally removes any
doubt that Ontario is a New York Conven-
tion jurisdiction, to the extent that any ex-
isted previously."
Whether the specific provisions of the
New York Convention were applicable in
Ontario was a matter of debate. "Most of
the time that debate was resolved in favour
of 'yes,' but now there's just no room for de-
bate," says Roy. Ontario's Superior Court
of Justice can apply the Convention as part
of Ontario law when a party seeks to en-
force, or resist enforcement of, an interna-
tional arbitral award.
Secondly, by appending the 2006 Model
Law, the new Ontario Act modernizes the
definition of an "arbitration agreement."
Previously it required that an arbitration
agreement be explicitly in writing to be
enforceable. Now, a written agreement is
deemed to exist as long as the content of
the agreement is "recorded" in some form.
Says Roy: "It could be recorded in corre-
spondence, in electronic communication,
or it may even be that if a party pleads it and
the other party doesn't deny it, that may
be sufficient. It really broadens the scope
of what may be available for international
commercial arbitration."
irdly, the ICAA, 2017 clarifies the
scope and availability of interim relief from
an arbitration tribunal. A party to an arbi-
tration may seek interim relief if it suspects,
for example, that the other party is going
to dissipate the asset in dispute or destroy
evidence. e old Act, based on the 1985
Model Law, allowed tribunals to grant in-
terim relief, but was not specific about the
scope of the relief available. Parties would
sometimes appeal to the court before or
during a proceeding because of the uncer-
tainty. e 2006 Model Law established a
comprehensive interim measures regime.
e ICAA, 2017 expressly recognizes a
tribunal's power to grant interim measures,
including an injunction and security for
costs, and for those orders to be recognized
"at already gave Ontario an advantage,
and this [new legislation] enhances it."
e new ICAA clarifies some ambi-
guities in the old Act that had resulted in
disputes and uncertainty. First, the ICAA,
2017 explicitly states that the Convention
and the Model Law have "force of law in
Ontario." e ICAA, 1990 had made no
reference to the Convention. So Ontario
SHARA ROY
LENCZNER SLAGHT
ROYCE SMITH GRIFFIN LLP
"Previously,
it was inferred
that the New York
Convention was
applicable in Ontario
… Now the new
legislation formally
removes any doubt
that Ontario is a
New York Convention
jurisdiction, to the
extent that any
existed previously."
