Court Involvement in the Arbitral Process - Chapter 7 - Arbitration Law of Canada: Practice and Procedure - Third Edition
Originally from Arbitration Law of Canada: Practice and Procedure, 3rd Ed.
COURT INVOLVEMENT IN THE ARBITRAL PROCESS
All of the Domestic and International Acts start with the basic proposition that no court is to intervene in matters governed by the respective Act, except as the Act provides. In other words, you must find a specific provision within the governing legislation permitting the court’s involvement in the arbitral process. The clear mandatory language displaces the concept that the courts have an overriding or inherent supervisory jurisdiction over arbitral tribunals.
The common law itself has evolved to recognize that arbitration is a private justice system, parallel to, but not part of the State’s judicial system. It is a standalone mechanism in which court involvement only occurs where specified in applicable arbitration legislation. There is no “inherent” supervisory jurisdiction in the court.
While many in the arbitration field speak of court “intervention,” the courts in Canada, for the most part, have come to recognize that commercial arbitration has evolved to become an important dispute resolution mechanism and today it is more appropriate to speak in terms of court “involvement,” where necessary, to facilitate the arbitral process. Courts and arbitral tribunals have both come to recognize the need for and the contribution of the other. Together the courts and the arbitral tribunals provide a sophisticated regime for the resolution of commercial disputes in Canada.
The courts have four general roles in the arbitration process:
1. Requiring parties to honour their obligations under arbitration agreements;
2. Supervising the conduct of the arbitration and the arbitrators to the extent permitted by law, if the place of arbitration is within the jurisdiction of the court;
3. Where requested, providing assistance in the conduct of the arbitration, usually, but not necessarily when the place of arbitration is within the jurisdiction of the court; and
4. Enforcing arbitral awards regardless of where they were made.