New Year, New Arbitration Rules

• Author: Michael Erdle
• Date: January 28, 2015

The ADR Institute of Canada has adopted new arbitration rules, which came into effect in December 2014. The new Rules are significant because they apply to any new arbitration commenced under the ADR Institute rules after December 1. Although the Rules are designed mainly for domestic commercial arbitration, they can also be used for international and non-commercial disputes.

First adopted in 2002 to provide a comprehensive set of national arbitration rules, the last major revision of the Rules was in 2008. The new Rules are the product of an in-depth review and broad consultation that began in 2012. This included a review of Canadian court decisions since 2002 to identify any judicial concerns regarding the previous rules.

The Rules committee concluded that it wasn’t necessary to completely overhaul the existing rules, especially since they have been adopted in many contracts, which will carry on into the future.

Some things have not changed under the new Rules. For example, they default to a single arbitrator, unless the parties agree otherwise. There is still a simplified procedure, with shorter time periods and an expedited process, if the parties choose to adopt it.

Some of the changes are cosmetic – for example simplified wording, structure and numbering, to make the Rules easier to follow. Some changes are administrative – for example, they now spell out the Institute’s responsibilities in administering arbitrations under the Rules, and set a new fee schedule. The Rules now expressly allow parties to opt out of administration, if they wish.

Some of the more significant changes in the Rules:

• Interim Arbitrator – A party may apply to the Institute for urgent interim measures before a tribunal is appointed or if an arbitrator is challenged. The Institute will appoint an interim arbitrator as soon as possible, normally within two days. The procedure for hearing the application will be set quickly, again normally within two days, and the interim arbitrator has the full power to grant any interim relief he or she considers appropriate. The interim application may be made, and interim relief may be granted, without notice to the other parties. But the interim arbitrator must give the other parties the chance to be heard as soon as possible. And any order made without notice is valid only until the arbitrator renders a decision on notice to all parties. The Institute must end any interim proceedings if it doesn’t receive a notice of request to arbitrate...