Arbitration

Arbitration 

Contributing editors 

Gerhard Wegen and Stephan Wilske 

2016 

© 

Law Business Research 2016

Arbitration 2016 

Contributing editors 


Gleiss Lutz 

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gideon.roberton@lbresearch.com 

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First published 2006 

Eleventh edition 

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© Law Business Research 2016

CONTENTS 

Introduction7 


Gleiss Lutz 

China82 

Shengchang Wang, Ning Fei and Fang Zhao 

Hui Zhong Law Firm 

CEA14 

Pablo Poza and Ana Blanco 

Spanish Court of Arbitration 

CEAC17 

Eckart Brödermann and Christine Heeg 

Chinese European Arbitration Centre 

Thomas Weimann 

Chinese European Legal Association 

DIS22 

Renate Dendorfer-Ditges 

DITGES PartGmbB 

European Court of Arbitration 26 

Mauro Rubino-Sammartano 

European Centre for Arbitration and Mediation 

HKIAC29 

Paulo Fohlin 

Magnusson 

Colombia91 

Alberto Zuleta-Londoño, Juan Camilo Fandiño-Bravo and 

Juan Camilo Jiménez-Valencia 

Cárdenas & Cárdenas Abogados 

Croatia97 

Zoran Vukić, Iva Sunko and Ana Pehar 

Vukić & Partners Ltd 

Denmark104 

Peter Lind Nielsen and Morten Grundahl 

Bird & Bird Advokatpartnerselskab 

Dominican Republic 110 

Fabiola Medina Garnes 

Medina Garrigó Attorneys at Law 

Ecuador118 

Rodrigo Jijón Letort, Juan Manuel Marchán, 

Juan Francisco González and Javier Jaramillo 

Pérez Bustamante & Ponce 

LCIA32 

Claire Stockford, Jane Wessel and Tom Stables 

Shepherd and Wedderburn LLP 

Egypt125 

Ismail Selim 

Khodeir and Nour in association with Al Tamimi and Company 

The Polish Chamber of Commerce 35 

Justyna Szpara and Maciej Łaszczuk 

Łaszczuk & Partners 

England & Wales 132 

Adrian Jones, Gordon McAllister, Edward Norman and John Laird 

Crowell & Moring LLP 

Angola38 

Agostinho Pereira de Miranda, Sofia Martins and Jayr Fernandes 

Miranda & Associados 

Equatorial Guinea 143 

Agostinho Pereira de Miranda and Sofia Martins 


Austria44 

Klaus Oblin 

Oblin Melichar 

Finland148 

Tom Vapaavuori and Juha Ojala 

Bird & Bird Attorneys Ltd 

Belgium50 

Johan Billiet 

Billiet & Co 

Cecile Oosterveen 

Association for International Arbitration 

Brazil60 

Hermes Marcelo Huck, Rogério Carmona Bianco and 

Fábio Peixinho Gomes Corrêa 

Lilla, Huck, Otranto, Camargo Advogados 

Canada67 

John Judge and Daniel Dawalibi 

Arbitration Place 

Chile75 

Paulo Román, Marta Arias and Rodrigo Donoso 

Aninat Schwencke & Cía 

France155 

Thomas Bevilacqua and Ivan Urzhumov 

Foley Hoag LLP 

Germany165 

Stephan Wilske and Claudia Krapfl 

Gleiss Lutz 

Ghana172 

Kimathi Kuenyehia and Sarpong Odame 

Kimathi & Partners, Corporate Attorneys 

Greece180 

Antonios D Tsavdaridis 

Rokas Law Firm 

Hong Kong 188 

Paulo Fohlin 

Magnusson 

2 Getting the Deal Through – Arbitration 2016 


CONTENTS 

Hungary196 

Chrysta Bán 

Bán, S Szabó & Partners 

Scotland313 

Brandon Malone 

Brandon Malone & Company 

India203 

Shreyas Jayasimha, Mysore Prasanna, Rajashree Rastogi, 

Spandana Ashwath and Sujaya Sanjay 

Aarna Law 

Italy215 

Cecilia Carrara 

Legance – Avvocati Associati 

Singapore321 

Edmund Jerome Kronenburg and Tan Kok Peng 

Braddell Brothers LLP 

Slovakia330 

Roman Prekop, Monika Simorova, Peter Petho and 

Eduard Kutenic 

Barger Prekop sro 

Japan222 

Shinji Kusakabe 

Anderson Mōri & Tomotsune 

Spain338 

Alberto Echarri 

Echarri & Brindle, Abogados 

Korea229 

BC Yoon, Richard Menard and Liz (Kyo-Hwa) Chung 

Kim & Chang 

Sweden346 

Simon Arvmyren 

Sandart & Partners 

Lithuania237 

Ramūnas Audzevičius and Rimantas Daujotas 

Motieka & Audzevičus 

Switzerland353 

Xavier Favre-Bulle, Harold Frey and Daniel Durante 

Lenz & Staehelin 

Malaysia244 

Foo Joon Liang 

Gan Partnership 

Taiwan360 

Helena H C Chen 

Pinsent Masons LLP 

Morocco253 

Azzedine Kettani 

Kettani Law Firm 

Tanzania367 

Wilbert Kapinga, Jacqueline Tarimo and Kamanga Kapinga 

Mkono & Co Advocates 

Mozambique260 

Agostinho Pereira de Miranda, Sofia Martins and 

Filipa Russo de Sá 


Myanmar266 

Kelvin Poon, Min Thein and Daryl Larry Sim 

Rajah & Tann Singapore LLP 

Nigeria272 

Dorothy Udeme Ufot, SAN 

Dorothy Ufot & Co 

Portugal281 

Sofia Martins and Pedro Sousa Uva 


Qatar288 

James Bremen, Christopher Humby and Gillian Carr 

Herbert Smith Freehills Middle East LLP 

Romania296 

Cristiana-Irinel Stoica, Andreea Micu and Daniel Aragea 

Stoica & Asociaţii 

Thailand373 

Kornkieat Chunhakasikarn and John Frangos 

Tilleke & Gibbins 

Turkey380 

İsmail G Esin, Özgun Çelebi and Doğan Gültutan 

Esin Attorney Partnership 

Ukraine388 

Oleg Alyoshin and Yuriy Dobosh 

Vasil Kisil & Partners 

United Arab Emirates 397 

Robert Stephen and Laura Askew 

Herbert Smith Freehills LLP 

United States 404 

Jack Thomas, Arlen Pyenson and Randa Adra 

Crowell & Moring LLP 

Venezuela411 

Fernando Peláez-Pier and José Gregorio Torrealba 

Hoet Pelaez Castillo & Duque 

Russia304 

Ilya Nikiforov, Alexey Karchiomov and Svetlana Popova 

Egorov, Puginsky, Afanasiev and Partners 

www.gettingthedealthrough.com 3 



CANADA 

Canada 

John Judge and Daniel Dawalibi 


Laws and institutions 

1 Multilateral conventions relating to arbitration 

Is your country a contracting state to the New York Convention 

on the Recognition and Enforcement of Foreign Arbitral 

Awards? Since when has the Convention been in force? Were 

any declarations or notifications made under articles I, X and 

XI of the Convention? What other multilateral conventions 

relating to international commercial and investment 

arbitration is your country a party to? 

Canada acceded to the New York Convention on 12 May 1986. Invoking 

the article I commercial reservation, Canada declared that the Convention 

would apply only to differences arising out of legal relationships, whether 

contractual or not, which were considered commercial under the laws 

of Canada; this declaration does not apply, however, in the province of 

Quebec. Canada did not invoke the reciprocity reservation under article 

I, nor were any declarations or notifications made under articles X and XI 

of the Convention. 

In Ontario, Canada’s largest province, the recognition and enforcement 

of foreign arbitral awards is also governed by the International 

Commercial Arbitration Act, which itself implements the UNCITRAL 

Model Law with some minor variations. In particular, Ontario expands the 

scope of enforceable awards by providing that for the purposes of article 

35 of the Model Law, an ‘arbitral award’ will include commercial arbitral 

awards made outside of Canada, even if the arbitration itself was not international 

as defined in article 1(3) of the Model Law. 

Canada is now a party to the Convention on the Settlement of 

Investment Disputes between States and Nationals of Other States (ICSID 

Convention), which came into effect on 1 December 2013. 

It should also be noted that Canada is a party to several multilateral 

free trade agreements that create binding investor-state arbitration obligations. 

These include the North American Free Trade Agreement (NAFTA: 

in force), the Canada and European Union Comprehensive Economic 

and Trade Agreement (CETA: signed but not yet in force), and the Trans- 

Pacific Partnership (TPP: signed but not yet in force). 

2 Bilateral investment treaties 

Do bilateral investment treaties exist with other countries? 

Canada is a party to 29 bilateral investment treaties, known in Canada 

as ‘Foreign Investment Promotion and Protection Agreements’ (FIPAs). 

FIPAs are currently in force with Argentina, Armenia, Barbados, Benin, 

China, Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Hungary, 

Jordan, Kuwait, Latvia, Lebanon, Panama, Peru, Philippines, Poland, 

Romania, Russia, Serbia, Slovakia, Tanzania, Thailand, Trinidad and 

Tobago, Ukraine, Uruguay, and Venezuela. Canada is also a signatory to 

FIPAs with Burkina Faso, Cameroon, Côte d’Ivoire, Guinea, Mali, Nigeria, 

and Senegal, but these are not yet in force. 

Canada is also a party to 9 bilateral free trade agreements (FTAs) that 

contain investment arbitration provisions, namely with Chile, Colombia, 

Costa Rica, Honduras, Israel, Jordan, Korea, Panama and Peru. A bilateral 

FTA with Ukraine was concluded on 14 July 2014 but is not yet in force. 

3 Domestic arbitration law 

What are the primary domestic sources of law relating to 

domestic and foreign arbitral proceedings, and recognition and 

enforcement of awards? 

Canada is a federal state comprised of ten provinces, three territories and 

the federal Parliament. A limited range of matters are governed by the federal 

Commercial Arbitration Act (such as arbitrations involving the federal 

government or Crown corporations, and maritime or admiralty matters) 

but otherwise commercial arbitration is constitutionally within the exclusive 

legislative jurisdiction of the provinces and territories. Apart from 

Quebec, which follows a continental European civil law tradition, all other 

Canadian jurisdictions follow the common law. 

Each of the nine common law provinces has adopted the UNCITRAL 

Model Law either integrally or by incorporation with respect to international 

commercial arbitrations (the International Arbitration Acts). These 

provinces have adopted separate statutes to govern domestic commercial 

arbitrations, most of which are modelled on the Uniform Arbitration Act 

of the Uniform Law Conference of Canada. In general, the International 

Arbitration Acts will apply when the subject matter of the arbitration is 

international, pursuant to article 1(3) of the Model Law. 

The federal Commercial Arbitration Act and the provisions of 

Quebec’s Civil Code dealing with arbitration are based on the Model Law, 

and apply equally to domestic and international arbitrations. 

The 2006 amendments to the Model Law have not yet been implemented 

in any Canadian jurisdiction. 

4 Domestic arbitration and UNCITRAL 

Is your domestic arbitration law based on the UNCITRAL 

Model Law? What are the major differences between your 

domestic arbitration law and the UNCITRAL Model Law? 

The various International Arbitration Acts each implement minor variations 

to the Model Law. For example, Ontario’s International Commercial 

Arbitration Act implements the Model Law, with the following important 

modifications: 

• contrary to article 1(3)(c) of the Model Law, no effect will be given to an 

agreement between parties when the subject matter of an arbitration 

is international; 

• contrary to article 11(1), parties are unable to preclude an arbitrator by 

virtue of his or her nationality; 

• contrary to article 35, an arbitral award will include commercial arbitral 

awards made outside Canada, even if the arbitration itself was not 

international, as defined in article 1(3); and 

• an order of an arbitral tribunal for an interim measure of protection 

and the provision of security is subject to the provisions of the Model 

Law as if it were an award. 

5 Mandatory provisions 

What are the mandatory domestic arbitration law provisions 

on procedure from which parties may not deviate? 

The International Arbitration Acts themselves do not, in implementing the 

Model Law, specify which provisions are mandatory. Based on applicable 



CANADA 


jurisprudence (such as the Ontario Superior Court’s 1998 decision in Noble 

China Inc v Lei, 42 O.R. (3d) 69), the prevailing view is that the following 

Model Law articles are mandatory: 

• article 18 (equal treatment of parties); 

• article 24 (hearings and written proceedings); 

• article 31 (form and contents of awards); 

• article 32 (termination of proceedings); and 

• articles 35 and 36 (recognition and enforcement). 

6 Substantive law 

Is there any rule in your domestic arbitration law that provides 

the arbitral tribunal with guidance as to which substantive law 

to apply to the merits of the dispute? 

Pursuant to article 28(2) of the Model Law, parties may select the substantive 

law applicable to their dispute. In the absence of such a selection, the 

arbitral tribunal shall apply the law determined by the conflict of laws rules 

that it considers to be applicable. In Ontario, article 28(2) of the Model Law 

is modified such that the arbitral tribunal shall, in the absence of a selection 

by the parties, apply the rules of law it considers to be appropriate in all 

the circumstances respecting the dispute. 

7 Arbitral institutions 

What are the most prominent arbitral institutions situated in 

your country? 

Domestic arbitrations in Canada are commonly conducted on an ad hoc 

basis. Some of the prominent Canadian-based arbitral institutions include: 

• ADR Institute of Canada (www.adrcanada.ca); 

• ADR Chambers (www.adrchambers.com/ca); 

• British Columbia International Commercial Arbitration Centre (www. 

bcicac.com); and 

• Institut de médiation et d’arbitrage du Quebec (www.imaq.org). 

Although not an arbitral institution, Arbitration Place in Toronto is a stateof-the-art 

hearing facility for domestic and international arbitrations, both 

ad hoc and institutional. 

Leading international institutions (such as the ICC, LCIA, HKIAC and 

ICDR) are also commonly selected to administer international arbitrations 

seated in Canada. 

Arbitration agreement 

8 Arbitrability 

Are there any types of disputes that are not arbitrable? 

With limited exceptions, any commercial matter is arbitrable in Canada, 

whether it is based on contract, tort or a statutory claim. As the Supreme 

Court of Canada held in Desputeaux v Éditions Chouette Inc, 2003 SCC 17, 

parties to an arbitration agreement have ‘virtually unfettered autonomy in 

identifying the disputes’ that may be arbitrable. 

In general, commercial disputes involving intellectual property, construction 

and engineering, technology licensing, distribution and agency, 

joint ventures, financing, and banking are all arbitrable. Internal corporate 

disputes, including shareholder disputes and oppression claims, may also 

be the subject of arbitration proceedings. 

With the exception of Quebec, employment agreements are generally 

not considered to be commercial for the purposes of arbitrability under the 

International Arbitration Acts. 

Regarding consumer disputes, some provinces such as Alberta, 

Ontario and Quebec have consumer protection legislation in place that 

relieves consumers from the effects of mandatory arbitration clauses. The 

Supreme Court of Canada’s ruling in Seidel v Telus Communications Inc, 

2011 SCC 15, also served to weaken the enforceability of consumer arbitration 

clauses in the common law jurisdictions, as have a number of Ontario 

lower court decisions dealing with class proceedings. 

Under certain statutory frameworks (particularly those dealing 

with matters of public interest) that establish robust investigative and 

enforcement mechanisms, such as the federal Criminal Code, the federal 

Competition Act and the securities legislation of the common law 

provinces, those mechanisms cannot be ousted by an arbitration clause. 

However, the review and assessment of legal fees chargeable to a client 

may also be determined by arbitration instead of a judicial procedure. 

9 Requirements 

What formal and other requirements exist for an arbitration 

agreement? 

The International Arbitration Acts implement article 7 of the Model Law, 

which only requires that an arbitration agreement be in writing. This 

requirement is satisfied by the creation of a signed document, by the 

exchange of documents providing a record of the agreement, or through 

incorporation by reference. Pursuant to various electronic commerce legislation 

in force across Canada, the formal writing requirement can often 

be satisfied through electronic forms of communication. 

10 Enforceability 

In what circumstances is an arbitration agreement no longer 

enforceable? 

The International Arbitration Acts implement article 8(1) of the Model 

Law, which provides that an arbitration agreement is unenforceable if it 

is ‘null and void, inoperative or incapable of being performed’. Pursuant 

to article 16 of the Model Law, an arbitration agreement shall be treated 

independently from the other terms of the contract in which it may be 

embedded. 

An arbitration agreement may be considered null or void in circumstances 

where the initial formation of the agreement itself is compromised, 

such as on the basis of non est factum, duress, fraud or mistake. 

An arbitration agreement may be inoperative in circumstances where 

the agreement was not void ab initio, but it ceases to have effect for reasons 

such as an expired time limit, waiver or where it is overridden by a competing 

legislative framework. 

Finally, an arbitration agreement may be unenforceable pursuant to 

article 8(1) where there is some impediment to the conduct of an arbitral 

proceeding that is beyond the parties’ control and that makes performance 

in accordance with the agreement impossible. One example of such circumstances 

would include the death of a named arbitrator. 

11 Third parties – bound by arbitration agreement 

In which instances can third parties or non-signatories be 

bound by an arbitration agreement? 

A third party to an arbitration agreement may, through consent, become 

bound by that agreement. In the absence of express consent, a third party’s 

consent may, in very limited circumstances, be implied under a number of 

different legal theories, including: 

• agency: an agent acting within his or her authority may bind a thirdparty 

principal; 

• assumption: a third party by its conduct and dealings may assume obligations 

under an arbitration agreement, such as a successor corporation 

following a merger or amalgamation; 

• equitable estoppel: a party may be estopped from relying on the 

absence of its signature on an arbitration agreement where that same 

party has sought enforcement for its own benefit; and 

• the ‘piercing the corporate veil’ and ‘alter ego’ doctrines. 

12 Third parties – participation 

Does your domestic arbitration law make any provisions with 

respect to third-party participation in arbitration, such as 

joinder or third-party notice? 

The International Arbitration Acts make no special provision for thirdparty 

participation in arbitral proceedings. An interested non-signatory 

may nevertheless participate in the arbitration, subject to prevailing procedural 

rules and the same theories described above (ie, through express 

consent or some form of implied consent (including the consent of the 

signatory parties)). 




CANADA 

13 Groups of companies 

Do courts and arbitral tribunals in your jurisdiction extend 

an arbitration agreement to non-signatory parent or 

subsidiary companies of a signatory company, provided that 

the non-signatory was somehow involved in the conclusion, 

performance or termination of the contract in dispute, under 

the ‘group of companies’ doctrine? 

The ‘group of companies’ doctrine has been recognised in a small body of 

Canadian jurisprudence where a non-signatory company has been bound 

by and allowed to participate in arbitral proceedings alongside a signatory 

parent or subsidiary (eg, the Ontario Superior Court’s decision in Xerox 

Canada Ltd v MPI Technologies Inc, 2006 CanLII 41006, where the court 

upheld a tribunal’s decision to allow a non-signatory parent company to 

participate as a claimant based on that parent’s involvement in the overall 

dispute resolution process). 

14 Multiparty arbitration agreements 

What are the requirements for a valid multiparty arbitration 

agreement? 

The International Arbitration Acts do not specifically address multiparty 

arbitration agreements, although such arbitrations are reasonably common 

in Canada under express contractual terms. 

Under Ontario’s International Commercial Arbitration Act, parties 

may make an application to the Superior Court of Justice for an order consolidating 

two or more arbitration proceedings, the result of which may be 

a multiparty arbitration. Where the court orders such a consolidation, the 

statute also provides that arbitrator selection for the consolidated tribunal 

will remain in the hands of the parties, if they can agree, failing which the 

court may appoint the arbitrators. A court order is not necessary, however, 

to effect such a consolidation: it may still be done by private agreement of 

the parties. 

Constitution of arbitral tribunal 

15 Eligibility of arbitrators 

Are there any restrictions as to who may act as an arbitrator? 

Would any contractually stipulated requirement for arbitrators 

based on nationality, religion or gender be recognised by the 

courts in your jurisdiction? 

There are no formal qualifications or restrictions imposed by law for arbitrators 

in either domestic or international arbitrations, other than basic 

tenets of natural justice requiring independence and impartiality. 

Sitting judges may serve as arbitrators, albeit without remuneration 

other than reasonable compensation for related expenses. However it is 

the accepted policy of the judiciary that sitting judges should not serve as 

arbitrators. Retired judges frequently act as arbitrators. 

The International Commercial Arbitration Acts of Ontario and British 

Columbia incorporate a modified version of article 11(1) of the Model Law 

in such a way as to eliminate a party’s right to restrict the choice of arbitrator 

according to nationality. No Canadian court has yet considered the 

Jivraj v Haswani case, though any efforts to limit arbitrator selection based 

on religion or ethnicity may intersect with the anti-discrimination provisions 

of various human rights statutes in force across Canada. 

16 Default appointment of arbitrators 

Failing prior agreement of the parties, what is the default 

mechanism for the appointment of arbitrators? 

Pursuant to articles 10 and 11 of the Model Law, in the absence of an agreement 

between the parties, the International Arbitration Acts set the default 

number of arbitrators at three, with each party selecting one arbitrator and 

those two appointees then selecting the presiding arbitrator. 

In circumstances of a default in the appointment of a sole arbitrator 

or a three-person panel, a party may apply to the court or to an agreed 

appointment authority. The leading Canadian arbitral institutions provide 

for similar procedural rules dealing with default appointments. 

In ad hoc arbitrations, or where neither the arbitration agreement 

nor the applicable arbitration rules provide for an appointing authority, 

the courts will assume the role of resolving defaults in the appointment of 

arbitrators. 

17 Challenge and replacement of arbitrators 

On what grounds and how can an arbitrator be challenged and 

replaced? Please discuss in particular the grounds for challenge 

and replacement, and the procedure, including challenge 

in court. Is there a tendency to apply or seek guidance from 

the IBA Guidelines on Conflicts of Interest in International 

Arbitration? 

The International Arbitration Acts implement articles 12 to 15 of the Model 

Law that address the challenge and replacement of arbitrators. 

The available grounds for challenge under article 12 of the Model Law 

are: (i) where there are justifiable doubts as to the arbitrator’s impartiality 

or independence; or (ii) where the arbitrator lacks the qualifications agreed 

to by the parties. 

In Canada, a challenge to an arbitrator’s impartiality or independence 

is assessed based on the ‘reasonable apprehension of bias’ test. The 

Supreme Court of Canada held in Wewaykum Indian Band v Canada, 2003 

SCC 45, that the applicable standard asks whether the apprehension of bias 

could arise in the mind of a reasonably informed person, viewing the matter 

realistically and practically, and having thought the matter through. 

The IBA Guidelines on Conflicts of Interest in International Arbitration 

have not been the subject of significant judicial consideration. However, 

in Telesat Canada v Boeing Satellite Systems International Inc, 2010 ONSC 

4023, the Ontario Superior Court of Justice removed an arbitrator because 

of a reasonable apprehension of bias; in so doing, the court referred to the 

IBA Guidelines, which had not been formally incorporated by reference 

into the arbitration. The court nevertheless found that the IBA Guidelines 

represent the view of the ‘arbitration community’. 

Absent any agreement establishing a different challenge procedure, 

article 13(2) of the Model Law will apply, whereby a party must make its 

claim in writing to the tribunal within 15 days of discovering the ground for 

challenge. The arbitral tribunal shall then decide on the challenge, unless 

the challenged arbitrator first withdraws. If the challenge is rejected, the 

challenging party then has 30 days to raise the challenge with the courts 

(or another appointed authority such as an arbitral institution). The court’s 

decision on the challenge is not subject to an appeal. 

Pursuant to article 14 of the Model Law, an arbitrator may also be challenged 

where he or she is unable to carry out his or her functions without 

undue delay. In such a situation, which can arise for example when an arbitrator 

falls seriously ill, the Model Law provides that the arbitrator’s mandate 

terminates when he or she resigns or when the parties agree on the 

termination. A party may also ask the court to remove the arbitrator. 

In Ontario, if an arbitrator is replaced or removed, and unless the parties 

agree otherwise, all proceedings that have already taken place will start 

afresh. 

18 Relationship between parties and arbitrators 

What is the relationship between parties and arbitrators? 

Please elaborate on the contractual relationship between 

parties and arbitrators, neutrality of party-appointed 

arbitrators, remuneration, and expenses of arbitrators. 

Arbitrators are bound contractually to all parties to an arbitration agreement, 

and are held to the same standards of neutrality, impartiality and 

independence, regardless of who appointed them. 

In an ad hoc arbitration, arbitrators are typically remunerated on an 

hourly or daily basis, plus related expenses. Deposits and cancellations 

fees are common. In institutional arbitrations, fees are typically paid 

through the institution in accordance with its rules and policies. 

19 Immunity of arbitrators from liability 

To what extent are arbitrators immune from liability for their 

conduct in the course of the arbitration? 

Generally, arbitrators in Canada enjoy immunity from actions in negligence 

or breach of contract, similar to the judiciary. An arbitrator will benefit 

from this immunity where: 

• there is an existing dispute that the parties have submitted to the 

arbitrator; 

• the arbitrator is acting in a judicial or quasi-judicial capacity; and 

• the arbitrator is fulfilling his or her function in compliance with the 

provisions of the applicable legislation. 



CANADA 


Whether this immunity also extends to intentional acts or bad faith is 

a question that has not received significant judicial consideration, and it is 

not addressed in the International Arbitration Acts. 

Jurisdiction and competence of arbitral tribunal 

20 Court proceedings contrary to arbitration agreements 

What is the procedure for disputes over jurisdiction if court 

proceedings are initiated despite an existing arbitration 

agreement, and what time limits exist for jurisdictional 

objections? 

Pursuant to article 8 of the Model Law, where court proceedings are initiated 

despite an existing arbitration agreement, the court will, on a motion, 

refer the parties to arbitration unless the agreement is null and void, inoperative 

or incapable of being performed. The motion must be brought by 

the party seeking to refer the matter to arbitration before it submits its first 

statement of substance in the judicial proceedings. 

The International Arbitration Acts generally implement article 8 in 

such a way that the court faced with these circumstances must also stay 

the court proceedings when referring the matter to arbitration. Even in the 

face of an allegation that the arbitration agreement is a nullity, the courts 

will, pursuant to the doctrine of competence-competence, refer the matter 

to the tribunal to make a determination on its own jurisdiction, unless the 

objection relates exclusively to a pure question of law (as opposed to questions 

of fact or mixed fact and law). 

21 Jurisdiction of arbitral tribunal 

What is the procedure for disputes over jurisdiction of the 

arbitral tribunal once arbitral proceedings have been initiated 

and what time limits exist for jurisdictional objections? 

Article 16 of the Model Law provides that an arbitral tribunal has the competence 

to rule on its own jurisdiction in the first instance. Parties have 

until the delivery of their statement of defence in the arbitration to raise 

a challenge that the tribunal lacks jurisdiction. Where a party believes that 

the tribunal has exceeded the scope of its authority, it must bring the challenge 

as soon as the impugned matter arises in the proceedings. 

If the tribunal rules on its own jurisdiction as a preliminary matter, 

the parties have 30 days from receipt of that decision to bring the question 

before the court, whose ruling is not subject to any further appeal. While 

a judicial decision is pending, the tribunal may nevertheless proceed with 

the arbitration and render an award. 

Arbitral proceedings 

22 Place and language of arbitration 

Failing prior agreement of the parties, what is the default 

mechanism for the place of arbitration and the language of the 

arbitral proceedings? 

The default place and language of arbitration is addressed by articles 20 

and 22 of the Model Law. If not addressed in the arbitration agreement or 

in applicable procedural rules, the tribunal is empowered to determine the 

place and language of arbitration, having regard to the circumstances of 

the case and the convenience of the parties. 

23 Commencement of arbitration 

How are arbitral proceedings initiated? 

Pursuant to article 21 of the Model Law, unless agreed otherwise the arbitral 

proceedings are deemed to start on the date on which a request for 

arbitration is received by the respondent. The International Arbitration 

Acts do not prescribe any additional formal requirements, however the 

procedural rules of leading Canadian and international institutions, as well 

as the UNCITRAL rules, set out the required content. 

Where the formal requirements prescribed by an institution’s procedural 

rules are not followed, the Ontario Court of Appeal in Bell Canada v 

The Plan Group, 2009 ONCA 548 held that the applicable limitation period 

may bar the proceeding from going forward at a later time. 

24 Hearing 

Is a hearing required and what rules apply? 

Unless the parties agree otherwise, the arbitral tribunal has the discretion 

to conduct an oral hearing, or to instead proceed solely based on documentary 

evidence and written submissions. Some provinces (such as British 

Columbia) have implemented the Model Law (and article 24 in particular) 

such that oral hearings are required to be held in private. 

25 Evidence 

By what rules is the arbitral tribunal bound in establishing the 

facts of the case? What types of evidence are admitted and how 

is the taking of evidence conducted? 

Questions as to the admissibility, relevance, materiality and weight of evidence 

fall under the tribunal’s general power to conduct the arbitration as 

it considers appropriate. 

Witnesses 

Witnesses commonly give their evidence in chief through sworn written 

statements, and are then cross-examined under oath at the oral hearing. 

Experts 

Although the tribunal has the power, under article 26 of the Model Law, to 

appoint its own experts, the invariable practice in Canada is for parties to 

retain the experts. Parties are required to provide objective, independent 

expert opinion, without obvious bias in favour of the party that has retained 

him or her. Written expert reports are exchanged in advance of a hearing 

and delivered to the tribunal. In a recent decision (Highbury Estates Inc v 

Bre-Ex Limited, 2015 ONSC 4966), the Ontario Superior Court found that 

there is no unfairness giving rise to a ground to set aside an award where 

arbitrators with relevant expert qualifications prefer their own opinions 

over the opinions of an expert retained by a party, particularly when the 

arbitrator was selected in part because of those same qualifications. 

Documents 

In the interests of efficiency, tribunals will often ask the parties to deliver 

an agreed book of documents, failing which the tribunal can make preliminary 

rulings on authentication and relevance. 

Party evidence 

Parties and corporate officers are entitled and expected to testify if they 

have relevant evidence, and adverse inferences may be drawn by the tribunal 

if they do not. 

26 Court involvement 

In what instances can the arbitral tribunal request assistance 

from a court and in what instances may courts intervene? 

Pursuant to article 27 of the Model Law, the tribunal (or a party with the 

tribunal’s consent) may request the assistance of the courts in the taking of 

evidence. The IBA Rules of Taking Evidence in International Commercial 

Arbitration are commonly applied by agreement of the parties, or are otherwise 

looked to by the tribunal (and the courts) as persuasive guidance. 

For witnesses within the jurisdiction, the court may issue a summons 

to compel a witness to attend the arbitration and produce documents. For 

ex juris witnesses, applicable domestic legislation (such as the Ontario 

Evidence Act) provides that the court may issue letters of request directed 

to the court in the jurisdiction where the witness is situated for assistance 

in taking evidence. 

27 Confidentiality 

Is confidentiality ensured? 

Parties to Canadian arbitrations generally provide for broad terms of 

confidentiality in the arbitration agreement itself. Failing any agreement, 

confidentiality may be a feature of the procedural rules (institutional or 

otherwise), or may be ordered by the tribunal. 

Canadian courts have not accepted, as a general proposition, that 

confidentiality is an implied term of an arbitration agreement. As noted 

above, among the common law jurisdictions, only British Columbia’s 

International Commercial Arbitration Act requires oral hearings to be held 




CANADA 

in private. On the contrary, in Quebec, the Court of Appeal has ruled that 

there is no implicit duty of confidentiality in that province. 

In the recent decision of Union Carbide Inc v Bombardier Inc, 2014 

SCC 35, the Supreme Court of Canada recognised that the public policy 

reasons that favour maintaining the confidentiality of settlement discussions 

and mediations are subject to some limits. In particular, the Court 

held that where parties wish to modify by agreement the default rules of 

confidentiality that may apply to their proceedings, they must do so clearly 

and explicitly. Other courts have also consistently held that even confidential 

proceedings may cease to be confidential once an arbitration award 

is brought into subsequent judicial proceedings (eg, on applications to 

enforce or set aside an award). 

Confidentiality will generally apply to the proceedings and information 

disclosed therein, to materials submitted to the tribunal and to the 

awards (final or interim) rendered. It should be noted that only the parties 

to the arbitration agreement themselves will be bound by any applicable 

confidentiality; separate agreements may be necessary to ensure that third 

parties, such as witnesses and experts, are also covered. Normally, the 

obligation of confidentiality is subject to exceptions when disclosure may 

be required by law, such as a disclosure in accordance with securities laws. 

Interim measures and sanctioning powers 

28 Interim measures by the courts 

What interim measures may be ordered by courts before and 

after arbitration proceedings have been initiated? 

According to the International Arbitration Acts, court intervention is prohibited 

except where provided in the Acts themselves. Article 9 of the 

Model Law, as implemented in Canada, permits parties to an arbitration to 

request interim measures from a court both before and during arbitral proceedings, 

without compromising the arbitration agreement. These interim 

measures can include injunctions to freeze assets or prevent actions being 

taken, including orders affecting third parties. 

29 Interim measures by an emergency arbitrator 

Does your domestic arbitration law or do the rules of the 

domestic arbitration institutions mentioned above provide for 

an emergency arbitrator prior to the constitution of the arbitral 

tribunal? 

The International Arbitration Acts do not provide for an emergency arbitrator, 

though there is nothing to prevent the parties from agreeing to such 

measures as part of their arbitration agreement or to adopt procedural 

rules that have emergency provisions. 

The ADR Chambers Arbitration Rules and the Arbitration Rules of the 

ADR Institute of Canada both provide for emergency interim measures 

prior to the constitution of the arbitral tribunal. 

30 Interim measures by the arbitral tribunal 

What interim measures may the arbitral tribunal order after 

it is constituted? In which instances can security for costs be 

ordered by an arbitral tribunal? 

Arbitral tribunals in Canada’s common law jurisdictions may order interim 

measures as it deems necessary relating to the subject matter of the dispute 

and the preservation of evidence. In a 2012 decision (Nearctic Nickel Mines 

Inc v Canadian Royalties Inc, 2012 QCCA 385), the Quebec Court of Appeal 

confirmed that arbitral tribunals have the power to grant interim measures, 

even when the arbitration agreement is silent on the issue. Although arbitrators 

in Quebec do not have the power to order injunctive relief (as it is 

reserved to the courts), the Court of Appeal rejected the assertion that arbitrators 

can never have the power to issue orders of ‘an injunctive nature’, 

such as specific performance. Arbitrators in provinces other than Quebec 

have the power to order injunctive relief and other interim measures in 

accordance with the International Arbitration Acts. 

In any event, the common practice in Canada is for parties to instead 

apply directly to the court for interim relief, particularly where the arbitration 

agreement does not specifically grant the arbitral tribunal such powers. 

Security for costs are typically granted in the form of deposits or 

advances to secure arbitrator fees. Security for costs in respect of legal 

fees are not addressed in the International Arbitration Acts, and may be 

granted only where the tribunal is given the authority to do so in the arbitration 

agreement or under the applicable procedural rules. 

31 Sanctioning powers of the arbitral tribunal 

Pursuant to your domestic arbitration law or the rules of the 

domestic arbitration institutions mentioned above, is the 

arbitral tribunal competent to order sanctions against parties 

or their counsel who use ‘guerrilla tactics’ in arbitration? May 

counsel be subject to sanctions by the arbitral tribunal or 

domestic arbitral institutions? 

The International Arbitration Acts do not specifically address an arbitral 

tribunal’s power to order sanctions against parties or their counsel. 

Conduct that leads to unnecessary delays and other more serious infractions 

that obstruct or endanger the integrity of arbitral proceedings are 

generally addressed in Canada by means of costs awards. As discussed in 

question 39, unless there is an agreement in place to the contrary, international 

arbitral tribunals seated in Canada are empowered to award costs. 

The ADR Chambers Arbitration Rules provide that where a party fails 

to comply with the rules or any order of the tribunal, the tribunal is empowered 

to ‘impose a remedy it deems just, including an award on default’. 

Awards 

32 Decisions by the arbitral tribunal 

Failing party agreement, is it sufficient if decisions by the 

arbitral tribunal are made by a majority of all its members or is 

a unanimous vote required? What are the consequences for the 

award if an arbitrator dissents? 

Pursuant to article 29 of the Model Law, unanimity is not required. A 

majority governs, but a dissenting arbitrator may refuse to sign and date an 

award rendered by the tribunal. However, pursuant to article 31, the refusal 

to sign, for any reason, must be explained in the written award. 

33 Dissenting opinions 

How does your domestic arbitration law deal with dissenting 

opinions? 

The International Arbitration Acts do not address dissenting opinions. 

In practice, there are conflicting views as to whether dissenting opinions 

should form part of the award; at the very least, the fact of a dissent should 

be noted in the award. In Quebec, dissenting opinions are allowed, and the 

Civil Code provides that they form an integral part of the award. 

34 Form and content requirements 

What form and content requirements exist for an award? 

Article 31 of the Model Law prescribes requirements for the form and content 

of an award. An award must: 

• be in writing; 

• be signed by the arbitrators (or by a majority of the tribunal, provided 

that the reason for the missing signatures is stated in the award); 

• state the reasons upon which it is based, unless otherwise agreed by 

the parties that no reasons are necessary; 

• state the date and place of the award; and 

• be delivered to each party. 

In order to ensure its enforceability, an award should also adhere to the 

form and content requirements prescribed in the New York Convention. 

35 Time limit for award 

Does the award have to be rendered within a certain time limit 

under your domestic arbitration law or under the rules of the 

domestic arbitration institutions mentioned above? 

The International Arbitration Acts do not prescribe any time limit for the 

delivery of an award. Parties may impose a time limit on the tribunal as 

part of the arbitration agreement, and the procedural rules of leading 

Canadian institutions also prescribe time limits for delivery of an award. 

In particular, the Arbitration Rules of the ADR Institute of Canada provide 

that all final awards must be made within 60 days after hearings have 

closed, and the ADR Chambers Arbitration Rules provide that the award 

shall be rendered within 25 days after the close of proceedings. Under these 

institutional rules, the parties may also agree to extend the time limit for 

the rendering of an award. 



CANADA 


The British Columbia Supreme Court, in Ben 102 Enterprises Ltd v Ben 

105 Enterprises Ltd, 2014 BCSC 64, held that an arbitrator is entitled to 

delay the release of a final award until all outstanding fees are paid. 

36 Date of award 

For what time limits is the date of the award decisive and for 

what time limits is the date of delivery of the award decisive? 

Unless agreed otherwise, a party has 30 days from the receipt of an award 

to request clerical or typographical corrections from the tribunal, or to seek 

an interpretation of a specific part of the award. An application to the court 

to set aside an award must be made no later than three months after it is 

received. 

37 Types of awards 

What types of awards are possible and what types of relief may 

the arbitral tribunal grant? 

Although not specifically addressed in any of the International Arbitration 

Acts (save for British Columbia’s), interim and partial awards are commonly 

rendered in Canada. The Model Law also provides that an award 

on agreed terms shall be rendered subject to the same requirements as any 

other award. 

Arbitrators in Quebec may also render partial or interim awards, but as 

noted above, these may not amount to injunctive relief, which is reserved 

to the Superior Court. 

Article 33 of the Model Law provides that following receipt of a final 

award, a party may request an additional award in respect of claims that 

were presented during the proceedings but which were omitted from the 

final award. 

38 Termination of proceedings 

By what other means than an award can proceedings be 

terminated? 

Where a claimant fails to deliver a statement of claim in a timely fashion, 

the tribunal shall terminate the proceedings, unless otherwise agreed by 

the parties. The Model Law also requires the tribunal to terminate proceedings 

where: the claimant withdraws its claim (unless the respondent has a 

legitimate interest in continuing); the parties agree; or the tribunal finds 

the continuation of proceedings unnecessary or impossible. 

In circumstances where a settlement is reached during the course of 

proceedings, the tribunal must terminate the proceedings, and may record 

that settlement in the form of an award if so requested by the parties. Most 

Canadian jurisdictions, in implementing the Model Law, have added that 

the tribunal may encourage a settlement, and with the agreement of the 

parties, may ‘use mediation, conciliation or other procedures’ at any time 

during the proceedings without being disqualified from resuming the role 

of arbitrator. 

39 Cost allocation and recovery 

How are the costs of the arbitral proceedings allocated in 

awards? What costs are recoverable? 

Cost allocation is not addressed in the International Arbitration Acts, save 

for the British Columbia Act, which specifically provides that the costs of an 

arbitration are in the discretion of the tribunal, and may include legal fees, 

arbitrator fees, institutional administration fees and ‘any other expenses 

incurred in connection’ with the proceedings. 

Even without this express language, arbitrators in other Canadian 

jurisdictions routinely award costs, finding jurisdiction to do so either 

through the arbitration agreement, applicable institutional rules or a recognised 

equitable right to award costs as justice requires. In keeping with 

the rules for cost allocation applicable in Canadian courts, costs are typically 

awarded on a ‘loser pays’ basis, with apportionment possible where 

success is divided. 

40 Interest 

May interest be awarded for principal claims and for costs and 

at what rate? 

The awarding of interest, either on principal claims or costs, is not 

addressed in the International Arbitration Acts, save for the British 

Columbia Act that expressly provides that tribunals may award interest. 

Tribunals in other Canadian jurisdictions, however, routinely award 

interest where the power to do so is found in the provisions of the underlying 

contract at issue, the arbitration agreement, the applicable institutional 

rules, or the law governing the substance of the dispute. The rate is 

normally a commercial rate in relation to the Bank of Canada prime rate, 

unless otherwise expressly provided for in the underlying contract. 

Proceedings subsequent to issuance of an award 

41 Interpretation and correction of awards 

Does the arbitral tribunal have the power to correct or interpret 

an award on its own or at the parties’ initiative? What time 

limits apply? 

Pursuant to article 33 of the Model Law, a party has 30 days from the date 

of receipt of the award to request corrections of any typographical, computational 

or clerical errors, or to seek an interpretation of a specific part of 

the award from the tribunal. The tribunal may also correct errors and issue 

clarifications on its own initiative, subject to the same 30-day time limit. 

42 Challenge of awards 

How and on what grounds can awards be challenged and set 

aside? 

The International Arbitration Acts prescribe a limited number of grounds 

upon which applications to set aside an award may be made to the courts. 

In general, Canadian courts show significant deference to arbitral tribunals, 

and pursuant to article 34 of the Model Law will only set aside an 

award where it is proven that: 

• a party was under some incapacity; 

• the arbitration agreement was invalid under the applicable law; 

• the party making the application to set aside an award was not given 

proper notice of an arbitrator’s appointment or the arbitral proceedings, 

or was otherwise unable to present his or her case; 

• the award deals with a dispute not contemplated in the submission to 

arbitration; or 

• the arbitral tribunal or the applicable procedure was not in accordance 

with the agreement of the parties. 

The award may also be set aside where the court finds that the subject matter 

of the dispute itself is not arbitrable, or where the award conflicts with 

a public policy, as supported by a specific law of the Canadian jurisdiction 

at issue. On an application to set aside an award, the court has discretion to 

stay the underlying arbitration proceedings. 

43 Levels of appeal 

How many levels of appeal are there? How long does it 

generally take until a challenge is decided at each level? 

Approximately what costs are incurred at each level? How are 

costs apportioned among the parties? 

Awards made in international arbitrations seated in Canada are generally 

not subject to appeal. In the limited circumstances prescribed in the 

International Arbitration Acts where a party may bring a challenge before 

the courts (eg, a challenge to the tribunal’s jurisdiction or to the appointment 

of an arbitrator), the Acts specifically provide that the court’s decision 

is not subject to further appeal. 

In other instances where arbitral proceedings may come before the 

courts, however, for example on an application to enforce or set aside an 

award, the Canadian judicial system generally consists of three levels of 

court: a provincial superior court of first instance; a provincial court of 

appeal; and finally the Supreme Court of Canada. Leave to appeal to the 

court of appeal is required in some instances, and leave to the Supreme 

Court of Canada is always needed, except in criminal matters. 




CANADA 

Update and trends 

The number of international trade and investment treaties to which 

Canada is a party has increased markedly in recent years. As noted in 

question 2, most of these bilateral investment treaties and free trade 

agreements contain investment arbitration provisions. With Canada’s 

recent ratification of the ICSID Convention, and the signing of the 

Trans-Pacific Partnership and the European Union Comprehensive 

Economic and Trade Agreement, the trend of Canada’s growing 

involvement in international investment arbitration looks likely to 

accelerate. 

Legislative review of the International Arbitration Acts continues 

to be an issue of discussion in Canadian legal circles. At its 2014 annual 

meeting, the Uniform Law Conference of Canada adopted the final 

Report of a Task Force on the Model Law Amendments, which included 

a proposed new uniform International Commercial Arbitration Act, and 

called for its implementation throughout Canada. The new uniform 

Act adopts the 2006 Model Law amendments, and aims at eliminating 

the variety of small discrepancies that currently exist as between the 

International Arbitration Acts. 

In Quebec, the legislature passed comprehensive amendments 

to that province’s Code of Civil Procedure in 2014, with the changes 

expected to come into force in January 2016. Among numerous other 

changes, the new Code of Civil Procedure requires that parties – 

including public entities – consider recourse to private forms of dispute 

resolution (such as mediation and arbitration), and codifies many 

procedural rules applicable to arbitral proceedings in Quebec. 

A number of recent judicial decisions not mentioned in this 

chapter have also strengthened Canada’s position as an arbitrationfriendly 

jurisdiction. In particular, in Sattva Capital Corp. v Creston Moly 

Corp., 2014 SCC 53, the Supreme Court of Canada confirmed (albeit 

in the context of a domestic arbitration) that significant deference 

is owed to the decisions of arbitrators, and that a review standard of 

‘reasonableness’ rather than ‘correctness’ applies when those decisions 

are appealed to the courts. In Depo Traffic v Vikeda International, 2015 

ONSC 999, the Ontario Superior Court of Justice, in granting an order 

for recognition and enforcement of a foreign arbitral award, emphasised 

the importance of the ‘principle of non-judicial intervention in arbitral 

awards’. In Popack v Lipszyc, 2015 ONSC 3460, in the face of evidence 

that grounds to set aside an arbitral award (from an international 

tribunal seated in Ontario) under article 34 of the Model Law had been 

met, the Ontario Superior Court of Justice refused to do so. The Court 

reasoned that given the principles and objectives which underpin the 

Model Law (namely party autonomy and the respect owed to tribunals), 

an application to set aside an award must be weighed against the 

prejudice that would result to both parties if such an order were granted. 

The Court determined that the annulment or setting aside of an award 

was discretionary and that the particular due process issue in that case 

(the tribunal spoke to a witness in the absence of the parties, but with 

the agreement of the parties) did not outweigh the prejudice of setting 

aside the award. 

Times vary from province to province, but in general, an appeal can 

take from six to 12 months, with even longer time frames expected when 

appealing to the Supreme Court of Canada. 

Costs depend largely on the length and complexity of the case, and 

on tariffs that differ in each Canadian jurisdiction. As noted above, cost 

awards in Canada follow the ‘loser pays’ principle, and may be apportioned 

according to mixed success. 

44 Recognition and enforcement 

What requirements exist for recognition and enforcement of 

domestic and foreign awards, what grounds exist for refusing 

recognition and enforcement, and what is the procedure? 

For the purposes of recognition and enforcement under the Model Law, the 

award must be commercial and international as those terms are defined in 

the International Arbitration Acts. In Ontario, however, an arbitral award 

will include commercial arbitral awards made outside of Canada, even if 

the arbitration itself was not international. Article 36 of the Model Law 

prescribes the grounds for refusing recognition and enforcement of an 

award, and these are very similar to the grounds available for setting aside 

an award. 

In Canada, the task of enforcement is left to the courts: once recognised, 

an arbitral award is enforceable in the same manner as a judgment 

of the court. Canadian courts generally look favourably on the enforcement 

of foreign arbitral awards. A recent decision of the Supreme Court 

of Canada, Chevron Corp v Yaiguaje, 2015 SCC 42, clarified the state of 

the law with regard to the recognition and enforcement of foreign judicial 

decisions, and this in turn may influence the approach applicable to 

arbitral awards. In particular, the Supreme Court held that the absence of 

recoverable judgment debtor assets in Canada does not, by itself, preclude 

a Canadian court from exercising jurisdiction in recognition and enforcement 

proceedings. Also, the Supreme Court confirmed that there need not 

be any ‘real and substantial connection’ between the Canadian court and 

the foreign court or the subject matter of the dispute. 

45 Enforcement of foreign awards 

What is the attitude of domestic courts to the enforcement 

of foreign awards set aside by the courts at the place of 

arbitration? 

Pursuant to Article 36 of the Model Law, Canadian courts will generally not 

enforce foreign arbitral awards that have been set aside by the courts at the 

place of arbitration, although they retain the judicial discretion to do so. In 

Stans Energy Corp. v Kyrgyz Republic, 2015 ONSC 3236, the Ontario Divisional 

Court recently set aside an ongoing Mareva injunction in part on the basis 

that the underlying foreign award had been set aside by a Russian court. 

46 Enforcement of orders by emergency arbitrators 

Does your domestic arbitration legislation, case law or the 

rules of domestic arbitration institutions provide for the 

enforcement of orders by emergency arbitrators? 

The International Arbitration Acts do not address the enforcement of 

orders issued by emergency arbitrators, nor has the issue been considered 

by Canadian courts. 

The Arbitration Rules of the ADR Institute of Canada, provide that the 

emergency arbitrator’s decision ‘must be in the form of an order’, whereas 

the ADR Chambers Arbitration Rules provide that an emergency arbitrator 

may enter an ‘interim award’. Arguably, only an award is enforceable pursuant 

to the terms of the Model Law and the New York Convention. 

47 Cost of enforcement 

What costs are incurred in enforcing awards? 

Recognition and enforcement proceedings are commenced by way of 

applications to the court, which generally proceed in writing supported by 

affidavit evidence. The costs involved include filing fees and associated 

legal fees, which are heavily dependent on the complexity of the application 

and whether there are contested issues regarding enforcement. 

Once recognised, the award can be enforced through the full range of 

remedies available for execution of court judgments, which in turn carry 

their own (fact-dependent) costs. 

Other 

48 Judicial system influence 

What dominant features of your judicial system might exert an 

influence on an arbitrator from your country? 

The influence exerted by the Canadian judicial system on Canadian 

arbitrators is, in general, favourable towards arbitration. This influence 

includes a deference towards arbitrators, a flexible approach to procedural 

rules in the ultimate interests of fairness and efficiency, and respect for 

underlying principles of natural justice and the rule of law. 

In particular, Canada’s judicial system generally entails pre-hearing 

documentary productions and oral discovery of a single witness per party, 

subject to time limits and the rules of privilege. US-style discovery involving 

the deposition of numerous witnesses is prohibited. In the arbitration 

context, however, pre-hearing oral discoveries are rarely seen; witness 

statements are common, and hearings are typically restricted to crossexaminations. 

In both the judicial and arbitration context, individual 

parties and corporate officers may be expected to testify if they are in a 

position to provide relevant and probative evidence (and an adverse inference 

may be drawn if they do not). 



CANADA 


49 Professional or ethical rules applicable to counsel 

Are specific professional or ethical rules applicable to counsel 

in international arbitration in your country? Does best practice 

in your country reflect (or contradict) the IBA Guidelines on 

Party Representation in International Arbitration? 

The conduct of Canadian counsel is regulated by the rules of professional 

conduct of the respective provincial law societies. Foreign counsel and 

arbitrators may appear in Canadian-seated arbitrations without restriction. 

While there has been some ambiguity on the scope of some provincial 

law society rules, Ontario’s law society has recently confirmed that its 

professional rules do not affect foreign arbitration practitioners with cases 

in that province. British Columbia and Quebec also enacted regulations to 

the same effect. 

50 Regulation of activities 

What particularities exist in your jurisdiction that a foreign 

practitioner should be aware of ? 

Foreign counsel and foreign arbitrators arriving for an international arbitration 

seated in Canada must possess the normal travel documents from 

their country of origin, which may include a visa. A Canadian work permit 

would not normally be required to appear on a single case. A foreign arbitration 

practitioner entering Canada is advised to carry a letter of invitation 

confirming that their attendance in Canada is necessary for the conduct 

of a Canada-seated arbitration. Foreign counsel and foreign arbitrators in 

an international arbitration are generally not subject to applicable valueadded 

taxes. 

John Judge 

Daniel Dawalibi 

Bay Adelaide Centre, 333 Bay Street, Suite 900 

Toronto 

Ontario 

M5H 2T4 

Canada 

jjudge@arbitrationplace.com 

ddawalibi@arbitrationplace.com 

Tel: +1 416 848 0203 

Fax: +1 416 850 5316 

www.arbitrationplace.com 



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