CANADA Law and Practice Contributed by: Craig A.B. Ferris KC, Michael J. Donaldson KC and Scott Lucyk, Lawson Lundell LLP
Parties are free to agree on confidentiality require - ments. Even if an arbitration agreement is silent on confidentiality, the governing international arbitration institutional rules may require it. For example, the VanIAC Rules stipulate that, subject to certain exceptions, the parties must keep the fol - lowing confidential: • all awards arising from the proceedings; • all evidence and materials created for the purpose of the arbitration; and • all other non-public documents produced by another party in the proceeding not otherwise in the public domain. However, if the parties to an arbitration decide to appeal an arbitral award, or otherwise apply to the court for relief, the record of arbitration proceedings will no longer be private and confidential ( 2249492 Ontario Inc v Donato , 2017 ONSC 4975). British Columbia’s International Commercial Arbitra - tion Act expressly provides in Section 36.01 (added in 2018) that, unless otherwise agreed by the parties, the parties and the arbitral tribunal must not disclose arbitration proceedings (or their component parts) or the award. An arbitral award is subject to legal requirements under Article 31 of the Model Law. These include that the award must: • be in writing and signed by the arbitrator (or major - ity of an arbitral panel); • state the date and place of the arbitration; and • state the reasons upon which it is based, unless the parties agree otherwise. There is no time limit requirement on the delivery of the award in the Model Law. These requirements may be contained in arbitral rules. For example, the ICDR Rules specify that the final award must be made no later than 60 days after the closing of the hearing 10. The Award 10.1 Legal Requirements
(unless otherwise agreed by the parties, specified by law or determined by the ICDR Administrator). Article 35 (a) of the VanIAC Rules specifies a 90-day time limit (unless otherwise agreed by the parties or directed by the arbitral tribunal). The arbitration agreement itself and the institutional rules adopted by the parties may contain additional No limits are imposed on the types of remedies that an arbitral tribunal may award under the Model Law or international commercial arbitration statutes. How - ever, the parties may limit the types of remedies that can be awarded in the arbitration agreement. The ICDR Rules, amended and effective from 1 March 2021, no longer restrict an arbitral tribunal governed by the ICDR Rules from awarding punitive, exemplary or similar damages. 10.3 Recovering Interest and Legal Costs An arbitrator’s powers to award pre- or post-award interest is not expressly addressed in the Model Law. Canadian courts have determined that the awarding of pre- or post-award interest is a matter of substantive law. The arbitrator’s mandate to resolve the parties’ dispute encompasses the power to award interest. The institutional rules also address the awarding of interest (Article 35 (e) of the VanIAC Rules and Article 34 (4) of the ICDR Rules). requirements for the award. 10.2 Types of Remedies The Model Law does not address costs. However, the BC Act specifically provides in Section 31 (8) that, subject to the parties’ agreement, the arbitral tribu - nal may award costs, which include legal fees and expenses, the fees and expenses of the arbitrators and expert witnesses, administrative fees, and other expenses related to the arbitration ( Allard v The Uni- versity of British Columbia , 2021 BCSC 60). The institutional rules may also permit an arbitral tribu - nal to award costs (eg, Article 38 of the VanIAC Rules and Article 34 of the ICDR-Canada Rules).
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