The Enforcement of International Commercial Arbitration Awards in Canada - Commercial Mediation and Arbitration in the NAFTA Countries
Kenneth M. Lysyk
Kenneth M. Lysyk has been a Judge on the Supreme Court of British Columbia since 1983; has been a Judge on the Supreme Court of British Columbia since 1983.
Originally from Commercial Mediation and Arbitration in the NAFTA Countries
January 1, 1994 marked the beginning of a new era in trade relations between the United States, Mexico and Canada, with the entry into force of the North American Free Trade Agreement. A corollary of the establishment of free trade between the three states is an increase in North American commerce, which the drafters of the NAFTA sought to foster and encourage. An example of such encouragement is provided by Article 2022 which addresses the situation where disputes emerge between private commercial parties:
Article 2022 - Alternative Dispute Resolution of Commercial Disputes
1. Each Party shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes between private parties in the free trade area.
2. To this end, each Party shall provide appropriate procedures to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral awards in such disputes.
3. A Party shall be deemed to be in compliance with paragraph 2 if it is a party to and is in compliance with the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the 1975 Inter-American Convention on International Commercial Arbitration.
The language of the provision makes clear that by entering into the NAFTA, each of the three contracting States is bound to make dedicated efforts to encourage the use of arbitration in settling international commercial disputes. This paper focuses upon the Canadian experience in this regard, particularly with respect to the manner in which Canadian courts have encouraged international commercial arbitration through the recognition and enforcement of arbitral awards.