International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (Consolidation Period: From March 22, 2017 )
|Coming into Force
|22 March 2017
International Commercial Arbitration Act, 2017
S.o. 2017, chapter 2
Consolidation Period: From March 22, 2017 to the e-Laws currency date.
1 Except as otherwise provided in this Act, words and expressions used in this Part have the same meaning as the corresponding words and expressions in the Convention.
Application of Convention
2 (1) Subject to this Act, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted by the United Nations Conference on International Commercial Arbitration in New York on 10 June 1958 and set out in Schedule 1, has force of law in Ontario in relation to arbitral awards or arbitration agreements in respect of differences arising out of commercial legal relationships.
(2) Subsection (1) applies to arbitral awards and arbitration agreements whether made before or after the coming into force of this Act.
(3) In determining whether the Convention applies to certain types of arbitral awards,
(a) an arbitral award made in a jurisdiction within Canada that is considered to be international in that jurisdiction is not considered to be a domestic award for the purpose of article I (1) of the Convention; and
(b) an arbitral award made in a jurisdiction within Canada that is not considered to be international in that jurisdiction is considered to be a domestic award for the purpose of article I (1) of the Convention.
Designation of court
3 For the purpose of seeking recognition and enforcement of an arbitral award pursuant to the Convention, application shall be made to the Superior Court of Justice.
The Model Law
4 Except as otherwise provided in this Act, words and expressions used in this Part have the same meaning as the corresponding words and expressions in the Model Law.
Application of Model Law
5 (1) Subject to this Act, the Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on 21 June 1985, as amended by the United Nations Commission on International Trade Law on 7 July 2006, set out in Schedule 2, has force of law in Ontario.
(2) With respect to article 7 of the Model Law, option I applies in Ontario; option II does not.
(3) The Model Law applies to international commercial arbitration agreements and awards made in international commercial arbitrations, whether made before or after the coming into force of this Act.
Interpretation of Model Law
6 (1) For the purposes of subsection 5 (1), the words and expressions listed in Column 2 of the following table, as used in the provisions of the Model Law set out in Column 1 of the table, shall be read as the words and expressions listed in the corresponding row of Column 3 of the table.
Same, “court” or “competent court”
(2) “Court” or “competent court”, when used in the Model Law in reference to an Ontario court, shall be read as a reference to the Superior Court of Justice unless the context requires otherwise.
Use of extrinsic material
(3) In applying the Model Law, recourse may be had to,
(a) the Reports of the United Nations Commission on International Trade Law on the work of its 18th (3 – 21 June 1985) and 39th (19 June – 7 July 2006) sessions (U.N. Docs. A/40/17 and A/61/17);
(b) the International Commercial Arbitration Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration (U.N. Doc A/CN.9/264); and
(c) the Commentary of the United Nations Commission on International Trade Law concerning the UNCITRAL Model Law on International Commercial Arbitration 1985 with Amendments as Adopted in 2006 (U.N. Sales No. E.08.V.4).
Rules applicable to substance of dispute
7 Despite article 28 (2) of the Model Law, if the parties fail to make a designation pursuant to article 28 (1) of the Model Law, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances respecting the dispute.
Enforcement of consolidation agreements
8 (1) If all parties to two or more arbitral proceedings have agreed to consolidate those proceedings, a party, with notice to the others, may apply to the Superior Court of Justice for an order that the proceedings be consolidated as agreed to by the parties.
Consolidation permissible without order
(2) Subsection (1) does not prohibit parties from consolidating arbitral proceedings without a court order.
Powers of court
(3) On an application under subsection (1), if all parties to the arbitral proceedings have agreed to consolidate the proceedings but have not agreed, through the adoption of procedural rules or otherwise, to the following matters, the court may, subject to subsection (4), make an order deciding either or both of those matters:
1. The designation of parties as claimants or respondents or a method for making those designations.
2. The method for determining the composition of the arbitral tribunal.
(4) If the arbitral proceedings are under different arbitration agreements, no order shall be made under subsection (1) unless, by their arbitration agreements or otherwise, the parties have agreed,
(a) to the same place of arbitration or a method for determining a single place of arbitration for the consolidated proceeding within Ontario;
(b) to the same procedural rules or a method for determining a single set of procedural rules for the conduct of the consolidated proceedings; and
(c) either to have the consolidated proceedings administered by the same arbitral institution or to have the consolidated proceedings not be administered by any arbitral institution.
(5) In making an order under this section, the court may have regard to any circumstances that it considers relevant, including whether,
(a) one or more arbitrators have been appointed in one or more of the arbitral proceedings;
(b) the applicant delayed applying for the order; or
(c) any material prejudice to any of the parties or any injustice may result from making an order.
Stay of proceedings
9 Where, pursuant to article II (3) of the Convention or article 8 of the Model Law, a court refers the parties to arbitration, the proceedings of the court are stayed with respect to the matters to which the arbitration relates.
10 No application under the Convention or the Model Law for recognition or enforcement (or both) of an arbitral award shall be made after the later of December 31, 2018 and the tenth anniversary of,
(a) the date on which the award was made; or
(b) if proceedings at the place of arbitration to set aside the award were commenced, the date on which the proceedings concluded.
Appeals re jurisdiction
11 (1) If, pursuant to article 16 (2) of the Model Law, an arbitral tribunal rules on a plea that it does not have jurisdiction, any party may apply to the Superior Court of Justice to decide the matter.
(2) The court’s decision under subsection (1) is not subject to appeal.
Effect on other matters
(3) If the arbitral tribunal rules on the plea as a preliminary question and an application is brought under this section, the proceedings of the arbitral tribunal are not stayed with respect to any other matters to which the arbitration relates and are within its jurisdiction.
12 (1) This Act binds the Crown.
Enforceability of awards
(2) An award recognized pursuant to this Act is enforceable against the Crown in the same manner and to the same extent as a judgment is enforceable against the Crown.
Part IV (OMITTED)
13-15 Omitted (amends, repeals or revokes other legislation).
Part V (OMITTED)
16 Omitted (provides for coming into force of provisions of this Act).
17 Omitted (enacts short title of this Act).
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
1 This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.
2 The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.
3 When signing, ratifying or acceding to this Convention, or notifying extension under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.
1 Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
2 The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
3 The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and...
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