CANADA Law and Practice Contributed by: Craig A B Ferris, Michael J Donaldson and Scott Lucyk, Lawson Lundell LLP
ure to give it the same force and effect as a judgment of the court. Institutional rules in Canada also reflect the principle in Article 9 of the Model Law. For example, Article 26 (h) of the VanIAC Rules provides that “a request for an interim measure addressed by a party to a judicial authority shall not be deemed incompatible with these Rules...” Similarly, Article 27 (3) of the ICDR Rules pro - vides that a request to a court for interim measures is not incompatible with an arbitration agreement and will not be deemed a waiver of the right to arbitrate. Unique to British Columbia, the BC Act also expressly provides that the court has the same powers to issue an interim measure as it has in court proceedings; however, the court may refer the request to an arbitral tribunal if it considers it proper. With respect to preliminary orders issued under the 2006 version of the Model Law, Article 17C(5) expressly states that a preliminary order is not an arbi - tral award and is not subject to enforcement by a court (this will apply in the provinces of Ontario and British Columbia under Section 17.03 (6) of the BC Act). Similarly, Article 639 of the Quebec Code of Civil Pro - cedure provides that an arbitrator’s provisional order is binding on the parties and cannot be homologated by the court. The appointment of emergency arbitrators is not con - templated by the legislation. For those arbitrations governed by the ICDR Rules, Article 7 provides that the administrator may appoint an emergency arbitra - tor and that, once the arbitral tribunal is constituted, the emergency arbitrator has no further powers. Articles 29–32 of the VanIAC Rules provide for the appointment of an emergency arbitrator and set out their powers. 6.3 Security for Costs The Model Law is silent on an arbitral tribunal’s pow - er to order security for costs (except as noted below regarding interim measures).
However, the parties may grant the arbitral tribunal the power to order security for costs in the arbitration agreement. In British Columbia, the International Commercial Arbitration Act grants the arbitral tribunal discretion to order security for costs as an interim measure. With respect to interim measures, Article 17 of both the 1985 and 2006 versions of the Model Law gives the arbitral tribunal the discretion to require any party to provide “appropriate security” in connection with an interim measure. Further, in Ontario, where a party applies for a preliminary order under Article 17B of the 2006 version of the Model Law, Article 17E(2) stipu - lates that the arbitral tribunal must require the apply - ing party to provide security in connection with the preliminary order, unless the arbitral tribunal considers it inappropriate or unnecessary to do so. Article 638 of the Quebec Code of Civil Procedure grants the arbitrator the power to require that a surety - ship is provided to cover costs “and the reparation of any prejudice” from a provisional measure. The institutional rules provide for the depositing of costs. For example, Article 39 of the VanIAC Rules permits the arbitral tribunal to require each party to deposit an equal amount in advance for costs. Simi - larly, Article 39 of the ICDR Rules permits the admin - istrator to request that the parties deposit an advance for costs. As noted in 2.1 Governing Law , the Model Law is incorporated into Canada’s provincial international commercial arbitration statutes. Article 19 of the Model Law provides that subject to its provisions, the parties are free to agree on the proce - dure to be followed by the arbitral tribunal in conduct - ing the proceedings and, failing such agreement, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate. 7. Procedure 7.1 Governing Rules
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