Canada - World Arbitration Reporter, Second Edition
Originally from World Arbitration Reporter - Second Edition
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
Canada is a federation made up of ten provinces, three territories and the federal government. It is often considered to be among the world's more decentralized federations with substantial legislative power residing in the provinces, including the power to pass laws regarding property and civil rights. As a result, each province has jurisdiction regarding arbitration, unless the case falls within a very limited number of areas of exclusive federal jurisdiction. In addition, Canada is in the unique position of having the province of Quebec governed by a civil law, not a common law system.
Notwithstanding this patchwork approach to jurisdiction, there has been remarkable cooperation and uniformity regarding legislation dealing with international commercial arbitration. In addition, the unifying influence of the Supreme Court of Canada as the final appellate court for all litigation has resulted in a legally sophisticated and arbitration friendly jurisdiction.
In Canada, initial judicial hostility to “lesser” tribunals and the lack of a modern legislative framework to support an alternative adjudicative process inhibited the growth of arbitration. Up until the 1990s, commercial arbitration in Canada was not regarded as a real substitute for the courts and the provinces were slow to recognize any distinction between domestic arbitration and international arbitration. Starting in the late 1980s and the early 1990s, there was a growing recognition of the need to do more to protect Canada’s international trade.