New International Commercial Arbitration Law For Ontario

Arbitration of commercial disputes continues to expand in Canada assisted by legislated frameworks that provide rules of conduct, procedural safety nets for appropriate recourse to the courts when necessary, coupled with statutorily mandated judicial enforcement mechanisms, again, where necessary. This is particularly the case for the arbitration of “international” commercial disputes where the parties are disinclined to submit to the jurisdiction of one another’s courts in preferring independent third party decision-makers. Provincial jurisdictions across Canada provide these mechanisms and, quite recently, the Province of Ontario acquired a new statutory umbrella, the International Commercial Arbitration Act, 2017, S.O. 2017,c. 2 (ICAA), which came into force on 22 March of this year. It replaces legislation with the same name dating from the late 1980s.

The new law, like the old, seeks to place Ontario on a competitive footing at the international level as a hospitable jurisdiction within which to both arbitrate and enforce arbitral decisions in commercial disputes. The ICCA does not depart dramatically from its predecessor in substance, but makes useful advances in form and clarity of the procedures laid down. It incorporates as schedules and by reference the United Nations (New York) Convention on the Recognition and Enforcement of Arbitral Awards of 1958, together with the UNCITRAL Model Law on International Commercial Arbitration of 1985. The previous law incorporated the New York Convention in the form of parallel statutory language, which was less clear, so the choice to append the original text of the New York Convention in the new legislation, provides improved clarity in particular for foreign parties. There is also a new limitation period for the enforcement of arbitral awards, generally ten years after the arbitral award was rendered.

The ICCA also adds provisions addressing interim measures and preliminary orders, for example, to the Superior Court of Ontario from an arbitral tribunal ruling either way on a plea that it does not have jurisdiction, making a useful improvement on the UNCITRAL Model Law, which does not expressly provide for an appeal to a court at the seat of arbitration where the arbitral tribunal declines to proceed for perceived lack of jurisdiction, but there is no conflict with the Model Law in this regard, just a useful removal of ambiguity.

The ICAA is itself the creature of a Canadian “model law”, the Uniform International Commercial Arbitration Act (2014), promulgated by the Uniform Law Conference of Canada for adoption in all Canadian jurisdictions in 2014. This ULCC spanned several years drawing on arbitral expertise from across the country, resulting in a final report and recommendations tabled before the ULCC in the spring of 1914. Ontario appears to be the first province to take this step to date, perhaps with a view to making Toronto a more prominent center for international commercial arbitration than it has in the past. However, all Canadian jurisdictions can be reasonably expected to follow the ULCC lead, in whole or in part, within the reasonably foreseeable future.

Dr. H. Scott Fairley is a partner at Cambridge LLP. He received his B.A. in 1974, in addition to his LL.B in 1977, from Queens University. He has also received his LL.M in International Legal Studies from New York University in 1979, and his S.J.D. in international and constitutional law from Harvard University in 1987. He has been a Fellow of the Chartered Institute of Arbitrators (FCI Arb) since 1999. Scott was called to the bar in 1982. In 2015, he received the Ontario Bar Association Award of Excellence in International Law.

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