CANADA Law and Practice Contributed by: Craig A B Ferris, Michael J Donaldson and Scott Lucyk, Lawson Lundell LLP
Cargill , 2011 ONCA 662, leave ref’d [2012] SCCA No 528 (SCC)). See the discussion on divergence in the case law in 5.5 Standard of Judicial Review for Juris - diction/Admissibility. As a result of two recent decisions of the Supreme Court of Canada, the question of the correct standard of review from an arbitrator’s jurisdictional decision is unsettled and likely to be the subject of further juris - prudence ( Canada ( Minister of Citizenship and Immi- gration ) v Vavilov , 2019 SCC 65 and Wastech Services Ltd v Greater Vancouver Sewerage and Drainage Dis- trict , 2021 SCC 7). In lululemon athletica canada inc v Industrial Color Productions Inc , 2021 BCCA 108, the British Columbia Court of Appeal concluded that the standard of review of an application to set aside an arbitral award under the Model Law (or international commercial arbitra - tion statutes) is correctness and that Cargill ( United Mexican States v Cargill , 2011 ONCA 662, leave ref’d [2012] SCCA No 528 (SCC)) remains the leading case on the standard of review for applications to set aside arbitral awards. Canada is a signatory to the New York Convention on Recognition and Enforcement of Foreign Arbitral 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 12. Enforcement of an Award 12.1 New York Convention
• numerous free trade agreements, foreign invest - ment promotion and protection agreements, mul - tilateral 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). Canadian courts will generally uphold the homologa - tion of arbitration awards even when such awards run contrary to foreign court decisions ( Eurobank Ergasias S . A . v . Bombardier Inc . (2024 SCC 11)).
194 CHAMBERS.COM
Powered by FlippingBook