www.lexpert.ca/usguide | LEXPERT • June 2018 | 15
award set aside or, if the award is rendered
in another country, have the Canadian
court refuse to enforce it."
Sarah Armstrong, a partner at Fasken
Martineau DuMoulin LLP in Toronto,
says two recent cases — Sattva Capital
v. Creston Moly (2014 SCC 53) and No-
vatrax International v. Hägele Landtech-
nik (2016 ONCA 771) — confirm "that
in our legal system, our courts take very
seriously the rights of parties to have their
disputes adjudicated outside of court, and
they'll respect that decision of the parties."
In recent years, the Uniform Law Con-
ference of Canada (ULCC) has encour-
aged the provinces and territories to har-
monize their International Commercial
Arbitration statutes on the basis of the
UNCITRAL Model Law, 2006 version.
If the laws were to be harmonized
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. … Canada has
a niche: we're bilingual and bi-juridical,
with both common law and civil law."
ONTARIO > Ontario most recently
updated its legislation governing Inter-
national Commercial Arbitration. The
current iteration of its International Com-
mercial Arbitration Act came into force on
March 22, 2017, replacing the one in force
since 1990. The purpose of the legislation
is to set basic norms for the ways in which
International Commercial Arbitrations
are conducted in Ontario as well as the
treatment of resulting arbitral awards
by Ontario courts. In essence, Ontario's
new ICAA appends both the New York
Convention and the 2006 Model Law.
The Alberta government has also ap-
pended the Convention and the 1985
Model Law to its statute. British Colum-
bia and Québec, in contrast, have taken
provisions from the Convention and the
Model Law and incorporated them into
their statutes, sometimes amending the
provisions in the process. "I see the On-
tario and Alberta approach as less compli-
cated and potentially more appealing to
outsiders coming in," says Armstrong.
Ontario's approach facilitates matters by
showing what is included and what is not,
without having to do a line-by-line compar-
ison between the provincial legislation and
the international regime, says Roy.
The new ICAA clarifies some ambigui-
ties in the old Act that had resulted in dis-
putes and uncertainty. First, the ICAA,
2017 explicitly states that the Convention
and the Model Law have "force of law in
Ontario." The ICAA, 1990 had made no
reference to the Convention. So Ontario
was the only Canadian jurisdiction with-
out legislation that explicitly incorporated
the New York Convention.
Ontario's Superior Court of Justice
can apply the Convention as part of On-
tario law when a party seeks to enforce,
or resist enforcement of, an international
arbitral award.
Second, 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 interna-
tional commercial arbitration."
Third, the ICAA, 2017 clarifies the
scope and availability of interim relief
from an arbitration tribunal. A party to
an arbitration may seek interim relief if it
suspects, for example, that the other party
is going to dissipate the asset in dispute or
destroy evidence. The old Act, based on
the 1985 Model Law, allowed tribunals to
grant interim relief, but was not specific
about the scope of the relief available. Par-
ties would sometimes appeal to the court
before or during a proceeding because of
the uncertainty. The 2006 Model Law
established a comprehensive interim mea-
sures regime.
The ICAA, 2017 expressly recognizes
a tribunal's power to grant interim mea-
sures, including an injunction and secu-
rity for costs, and for those orders to be
recognized and enforced as binding by
Ontario's Superior Court of Justice.
Finally, the new Act sets a limitation
period of 10 years for enforcing an arbitral
award, from the date the award is made or
the date on which a proceeding to set aside
the award is concluded.
Previously the limitation period was
two years. This change provides needed
clarity following the Supreme Court of
Canada's 2010 ruling in Yugraneft v. Rexx
Management (2010 SCC 19), in which
it held that local limitations laws also
applied to the enforcement of an arbitral
award, absent an express provision in the
relevant legislation to the contrary.
Even if the 10-year limitation period
for enforcement of foreign arbitral awards
were harmonized among all the provinces,
