Court Involvement in Commercial Arbitration

AuthorJ Brian Casey
chapter eleven
Court Involvement in Commercial
J briAn CAsEy
The extent to which the courts in Canada become involved in the
arbitral process is now governed expressly by legislation. Historic-
ally at common law, the courts had a general supervisory jurisdic-
tion respecting the conduct of arbitrations and a decidedly negative
view that any issues of law or legal rights should not be adjudicat-
ed outside of a state’s judicial regime. The modern view in Canada
is that arbitration does not form part of the judicial system of any
province1 but operates as an autonomous dispute resolution regime
in which court involvement is generally restricted to the following:2
1) requiring parties to honour their obligations under arbitration
2) supervising the conduct of the arbitration and the arbitrators
to the extent permitted by legislation
3) providing assistance in the conduct of the arbitration when
4) enforcing arbitral awards regardless of where they were made
1 See Desputeaux v Éditions Chouette (1987) inc, [2003] 1 SCR 178 at paras 40–41.
2 See, for example, Arbitration Act, RSA 2000, c A-43, s 6.
J briAn CAsEy
All of the common law provinces make a distinction between
domestic and international arbitration. In this chapter, legis-
lation dealing with international arbitration is referred to as the
international Act or the UNCITRAL Model Law. Legislation deal-
ing with arbitration not covered by the international Act is re-
ferred to as the domestic Act.
For international commercial arbitrations, every common law
province has adopted the UNCITRAL Model Law on International
Commercial Arbitration,3 which provides for very limited court in-
volvement. Most of the common law provinces have also prom-
ulgated modern domestic arbitration legislation based on the
UNCITRAL Model Law. The federal government and Quebec have
each passed arbitration legislation based on the UNCITRAL Model
Law that covers all commercial arbitrations within their jurisdic-
tion. It is thus important when considering whether or not a court
can intervene in an arbitration to determine whether the arbitra-
tion is considered domestic or international under the appropri-
ate legislation.
Pursuant to the UNCITRAL Model Law, an arbitration is inter-
national if one of the following is true:
1) The parties to the arbitration agreement have at the time of
its conclusion their places of business in dierent countries.
2) One of the parties has its place of business outside Canada.
3) A substantial part of the obligations of the commercial rela-
tionship is to be performed outside Canada.
4) The place of the subject matter of the dispute is most closely
connected with a place outside Canada.
5) The parties have agreed that the arbitration is international.4
As a further requirement to come within a province’s inter-
national Act, the arbitration must be considered “commercial.
The British Columbia international Act specically includes a def-
inition of “commercial” in section 1(6):
3 21 June 1985, UN Doc A/40/17, annex 1, online:
texts/arbitration/ml-arb/06-54671_Ebook.pdf [UNCITRAL Model Law].
4 Ibid, art 1.

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