16 | LEXPERT • June 2018 | www.lexpert.ca/usguide
Saskatchewan is an "export-depen-
dent province. For us as practitioners to
not have an International Commercial
Arbitration law that adopts best prac-
tices to provide business certainty to in-
ternational commercial transactions, it
puts us behind the rest of Canada and a
lot of other states that have adopted the
2006 amendment."
The Saskatchewan Court of Appeal's
ruling in Greer v. Babey (2016 SKCA 45)
provides recent case law on international
commercial arbitration in the province.
The trial judge had refused to refer a
dispute to arbitration as it would result in
a multiplicity of proceedings. (There was
an action filed with the Court of Queen's
Bench in Saskatchewan for portions of
the parties' interactions not covered by the
arbitration agreement.)
On appeal, this decision was over-
turned; the concern with a multiplicity
of proceedings was no longer a relevant
factor in refusing to refer matters to arbi-
tration as described in Article 8(1) of the
Model Law.
NOVA SCOTIA > Nova Scotia adopted
its International Commercial Arbitra-
tion Act in 1986, appending the New
York Convention and the 1985 Model
Law to the statute. In a carve-out from
the Model Law, the Nova Scotia statute
says that if the parties fail to designate
what law applies, the arbitral tribunal
shall apply the rules of law it considers
appropriate in the circumstances.
The kind of modernization initiatives
completed in Ontario and Québec, and
ongoing in BC, has apparently not even
been started in Nova Scotia.
The limitation period to enforce an In-
ternational Commercial Arbitration deci-
sion in Nova Scotia is governed by the Su-
preme Court's 2010 decision in Yugraneft
v. Rexx Management (2010 SCC 19).
"Based on that decision, the applicable
limitation period depends largely upon
whether the arbitral award was rendered
in a reciprocating jurisdiction under
the Reciprocal Enforcement of Judgments
Act," says John Keith, a partner at Cox &
Palmer in Halifax. "So it is somewhat of a
moving target."
Dispute Resolution
a victorious party might still have to seek
enforcement in several provinces.
While the new Act is intended to pro-
mote Ontario as a seat for International
Arbitrations, at the very least it will en-
sure that Ontario remains an arbitration-
friendly jurisdiction that favors harmo-
nized legal standards for recognition and
enforcement of international arbitral law.
QUÉBEC > Unlike the common-law
provinces, Québec's civil law has one in-
tegrated statute for domestic and Inter-
national Arbitration. In 1996, Québec
replaced the chapter on Arbitration in its
Code of Civil Procedure with provisions
based on UNCITRAL's 1985 Model
Law, making more or less the same rules
applicable to both domestic and interna-
tional arbitration in the province.
Québec, in contrast to the common-
law provinces, considers an arbitration
to be "international" if at least one of the
parties to the dispute is headquartered
outside Québec, even if it is in another
province. (In the other provinces, it
would be considered a domestic arbitra-
tion and subject to the separate domestic
arbitration statute.)
A new Code of Civil Procedure, which
came into force in Québec in January 1,
2016, contains a chapter that reflects the
2006 Model Law.
One significant deviation from the
Model Law contained in the Code is the
default clause for the composition of the
arbitration panel. It stipulates that, for
resolving disputes in which the amount
claimed is less than $2 million, there will
be one arbitrator unless the parties have
agreed to have more.
The Model Law provides for a panel of
three arbitrators unless the parties have
agreed otherwise.
The reason for this deviation was to
make the arbitration process faster and less
expensive. This reflects a shift in the rules
of the major International Arbitration in-
stitutions. However, when major contracts
are in dispute, says Dalphond, most parties
will prefer to have three panelists rather
than have their fate consigned to a single
arbitrator. "Three can make a mistake, but
the risk is reduced."
BRITISH COLUMBIA > BC's Interna-
tional Commercial Arbitration Act is based
on the original version of the Model Law,
says Craig Dennis, a partner at Dentons
Canada LLP in Vancouver, which is "pret-
ty faithful to the 1985 Model Law."
Under BC's former Liberal government,
a working group was created to update the
statute and thereby make Vancouver a more
attractive seat of international commercial
arbitration. One of the key provisions to be
addressed in any update of the BC legisla-
tion would be the 2006 Model Law's evo-
lution in the area of interim relief and what
powers an arbitrator has to grant such relief.
ALBERTA > Alberta in 2000 amended
the Arbitration Act, for domestic arbitra-
tion matters, and the International Com-
mercial Arbitration Act, for International
Commercial Arbitration matters. Alberta,
like Ontario, appends to the latter the
Convention and the Model Law. Howev-
er, it has not updated the Model Law to its
2006 version from the 1985 version.
Calgary is trying to promote itself as a
legal seat for International Commercial
Arbitration, especially for the energy sector,
says Michael McCachen, a partner at Blake,
Cassels & Graydon LLP in Calgary.
SASKATCHEWAN > Saskatchewan
proclaimed its International Commer-
cial Arbitration Act in 1988, appending
the 1985 Model Law. "It hasn't
substantively changed since 1988," says
Christopher Masich, a partner at McK-
ercher LLP in Saskatoon.
