Arbitral Awards: Appeals, Setting Aside, and Enforcement

• Author: Harvin Pitch & Lucas Kittmer
• Pages: 389-423

389

chapter fifteen

Arbitral Awards: Appeals, Setting Aside,

and Enforcement

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A. INTRODUCTION

This chapter is about conducting domestic and international

arbitration. A domestic arbitration is one where the parties to the

dispute reside or carry on business in Canada. An international

arbitration is one where the parties reside or carry on business in

dierent countries. While there are many principles of law that

apply to both domestic and international arbitration, they are

governed by separate statutes.

This chapter will concentrate mainly on the law as it applies

in the province of Ontario. However, subject to certain statutory

exceptions, the law is applied similarly across the common law

provinces.1

1 For a discussion of the federal and provincial laws applying to domestic

and international arbitration in Canada, see J Brian Casey, Arbitration Law

of Canada: Practice and Procedure, 2d ed (Huntington, NY: Juris, 2011) ch 2;

Babak Barin, Andrew D Little, & Randy A Pepper, The Osler Guide to Commer-

cial Arbitration in Canada: A Practical Introduction to Domestic and International

Commercial Arbitration (The Hague: Kluwer Law International, 2006) ch 4.

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390

B. HISTORY OF THE LEGISLATION

Until the 1990s, litigation was carried on primarily in the courts.

While arbitration existed, our courts were slow to recognize that

arbitration was an eective substitute for the courts, and the

provinces were slow to recognize the distinction between domes-

tic and international arbitration.2

This all began to change in 1986 when Canada signed the United

Nations Convention on the Recognition and Enforcement of Foreign Arbi-

tral Awards (the New York Convention)3 and adopted the UNCITRAL

Model Law on International Commercial Arbitration.4 The New York Con-

vention was quickly ratied at the federal level, making Canada the

rst country to adopt legislation based on the New York Convention.5

Before long, the model law was implemented in provincial legis-

lation across Canada.

Contrary to what one might expect from such a rapid, matter- of-

fact adoption of United Nations legislation, the ratication of the

UNCITRAL Model Law was an incredibly signicant watershed mo-

ment for Canada’s approach to arbitration conducted both at home

and abroad. The overarching policy objective of the New York Con-

vention and the UNCITRAL Model Law is to strengthen the certainty

and enforceability of international commercial arbitration as a dis-

pute resolution mechanism. As a result, the UNCITRAL Model Law

promotes a high degree of deference to arbitration awards made in

compliance with basic principles of fairness. Canadian courts’ trad-

itional skepticism of foreign arbitral awards, particularly the fur-

ther one got from traditional Western-style democracies, gave way

to a robust paradigm of respect for arbitration agreements so long

2 See Casey, above note 1 at 2–3.

3 10 June 1958, 330 UNTS 3, online: www.uncitral.org/pdf/english/texts/

arbitration/NY-conv/New-York-Convention-E.pdf.

4 21 June 1985, UN Doc A/40/17, annex 1, with amendments adopted 7 July

2006, UN Doc A/61/17, annex 1, online: www.uncitral.org/pdf/english/

texts/arbitration/ml-arb/07-86998_Ebook.pdf [UNCITRAL Model Law].

5 See Randy A Pepper, “Why Arbitrate?: Ontario’s Recent Experience with

Commercial Arbitration” (1988) 36:4 Osgoode Hall Law Journal 807.

Arbitral Awards: Appeals, Setting Aside, and Enforcement

391

as they met the most fundamental requirements of justice under

the UNCITRAL rules.

The New York Convention deals with the enforcement of foreign

international arbitration awards that are sought to be enforced in

the local province. The UNCITRAL Model Law deals with the con-

duct of international commercial arbitration in the local province.

It also provides for the setting aside of international arbitration

awards. The New York Convention has been adopted as special legis-

lation in most of the provinces. In Ontario, the New York Convention

is contained in the International Commercial Arbitration Act, 2017.6

The UNCITRAL Model Law has been incorporated into that Act.

The provinces were concerned that the UNCITRAL Model Law

would have to be amended to deal with the circumstances of pure

domestic arbitration to give the court more exibility to inter-

vene. For example, under the UNCITRAL Model Law there is no

right of appeal, and a right of appeal is included under the do-

mestic legislation. There are, therefore, some dierences between

the domestic acts and the UNCITRAL Model Law. The model law is

nevertheless the basis for the provincial legislation, including the

Ontario Arbitration Act, 1991.7

C. FURTHER COMMENTS

The policy underlying the UNCITRAL Model Law and therefore the

policy underlying both the ICAA and the Arbitration Act is the rec-

ognition of parties’ autonomy to agree upon and implement their

own dispute resolution mechanisms outside of the court process.8

The courts are now generally inclined to enforce parties’ ex-

press agreements to defer disputes to arbitration and to enforce

6 SO 2017, c 2, Schedule 5 [ICAA].

7 SO 1991, c 17 [Arbitration Act].

8 See Colin P Stevenson, “Arbitral Awards: Appeals, Setting Aside and En-

forcement” (Delivered at the Law Society of Upper Canada program A

Primer on Arbitration: For Litigators, Toronto, 5 April 2016) at 2, online:

www.swlawyers.ca/docs/Arbitral-Awards-Appeals-Setting-Aside-and-

Enforcement_-_Colin-Stevenson.pdf.