Originally from Alternatives to the High Cost of Litigation

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“Disputes, unlike wine, do not improve by aging.”

Willard Z. Estey (a former Justice of the Supreme Court of Canada)

Unlike the United States, all Canadian provinces and the federal government have adopted legislation implementing the UNCITRAL Model Law on International Commercial Arbitration (bit.ly/1DbWZiC) that governs international arbitrations conducted in Canada and the enforcement of international arbitration awards. Principles first enunciated in the 1958 New York Convention (bit.ly/1n4KXNT) and amplified in the Model Law that limit judicial intervention and preclude any review of the merits of an arbitral award on matters of either fact or law are therefore applicable and consistently enforced throughout Canada with respect to international arbitrations. The Canadian province of British Columbia was the first jurisdiction anywhere in the world to adopt the Model Law.

Different principles apply to non-international commercial arbitration. While federal arbitration legislation (which applies only to disputes with the federal government and certain specialized areas of the law under federal jurisdiction) and the Quebec Civil Code apply the same principles regarding judicial non-intervention to both international and non-international commercial arbitration, most Canadian provinces allow for appeals of domestic arbitral awards to the courts on “questions of law.” Usually, such appeals can only be brought if the losing party obtains “leave,” i.e., permission, to appeal, on criteria that are set out in the arbitration statutes. In most provinces, the parties may exclude any right of appeal by agreement, or in some cases they may expand rights of appeal to include appeals on questions of fact and questions of mixed fact and law. In two provinces (British Columbia and Alberta), it is not possible for the parties to contract out of the possibility of an appeal to the court, with leave, on a question of law.