CANADA Law and Practice Contributed by: Craig A.B. Ferris KC, Michael J. Donaldson KC and Scott Lucyk, Lawson Lundell LLP
Awards (“the New York Convention”), which entered into force in Canada on 10 August 1986. Under the Convention, Canada declared one res - ervation: that it would apply the Convention only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in Quebec, where the law did not provide for such limitation. In addition to the New York Convention, Canada is a party to: • the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (ICSID); and • numerous free trade agreements, foreign invest - ment promotion and protection agreements, multi - lateral agreements, and World Trade Organization agreements. 12.2 Enforcement Procedure The procedure for recognition and enforcement of a foreign award is set out in Articles 35 and 36 of the Model Law, which, generally speaking, serve as a complete code in Canada ( CJSC “Sanokr-Moskva” v Tradeoil Management Inc , 2010 ONSC 3073). In Canada, the court retains the discretion to refuse to recognise or enforce an arbitral award if the party against whom the award is invoked proves the exist - ence of a ground under Article 36 (1)(a) ( Depo Traffic Facilities (Kunshan) Co v Vikeda International Logistics and Automotive Supply Ltd , 2015 ONSC 999). 12.3 Approach of the Courts The Model Law limits the ability of national courts to interfere with international arbitration proceedings ( Yugraneft Corp v Rexx Management Corp , 2010 SCC 19). In addition to the grounds under Article 36 (a) for refusing to enforce arbitral awards, the court retains discretion to refuse to recognise or enforce an arbitral award on the ground of public policy. The public policy ground for resisting enforcement of an arbitral award has been narrowly construed in Can - ada ( Corporacion Transnacional de Inversiones SA de CV v STET International SpA , 1999 CanLII 14819 (Ont
Sup Ct J [Commercial List]), aff’d 2000 CanLII 16840 (ON CA), leave ref’d [2000] SCCA No 581 (SCC)). There is no onus on a party to convince the court that the award is contrary to public policy; rather, such determination is made by the court itself ( Depo Traffic Facilities (Kunshan) Co v Vikeda International Logistics and Automotive Supply Ltd , 2015 ONSC 999). 13. Miscellaneous 13.1 Class Action or Group Arbitration Arbitration legislation in Canada does not provide for class-action arbitration or group arbitration. 13.2 Ethical Codes There are no ethical codes in Canada that apply spe - cifically to arbitration counsel. However, the law socie - ties in each province and territory establish the profes - sional and ethical obligations applicable to Canadian lawyers. As discussed in 4.5 Arbitrator Requirements , arbitra- tors must be independent and impartial. 13.3 Third-Party Funding There is no Canadian legislation providing rules or restrictions on third-party funding. This issue is being addressed primarily in the context of court-based class action proceedings. 13.4 Consolidation The Model Law does not provide for consolidation of arbitration proceedings. However, the international arbitration legislation in each province and territory generally allows the court to order consolidation on application of the parties. 13.5 Binding of Third Parties The instances in which third parties can be bound by an arbitration agreement or award are addressed in 5.6 Jurisdiction Over Third Parties .
100 CHAMBERS.COM
Powered by FlippingBook