CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
grounds to refuse recognition and enforcement. In all cases, the enforcing court has no power to deal with the merits of the underlying arbitration. Generally speaking, and under the domestic Arbitra - tion Act 1991, SO 1991, c 17, the court “shall” grant judgment enforcing the award made in the province unless: • the award is not final and the period to commence an appeal or an application to set the award aside has not passed; • there is a pending appeal, an application to set aside the award, or an application to declare the award invalid; • the award has been set aside or the arbitration is the subject of a declaration of invalidity; or • the award is a family arbitration award. In order to recognise and enforce an arbitral award from another Canadian province in Ontario, the same test applies, with the added requirement that the sub - ject matter of the award must be capable of being the subject of arbitration under Ontario law. While all Canadian provinces’ courts readily enforce awards from their own or other Canadian provinces, there are differences in the procedures and tests, which need to be considered, depending on where enforcement of the award is sought. ICSID awards will typically be recognised as binding. The monetary obligations of the award will be enforce - able as though they were a final judgment of a domes - tic court. 4.3 Categories of Arbitral Awards Not Enforced Domestic arbitral awards that extend to parties who are not bound by the arbitration agreement and who have not attorned to the jurisdiction of the arbitral tri - bunal will not be enforced. Generally, the Canadian courts will not enforce a domestic or international arbitral award if the subject matter of the arbitration is not capable of being set - tled by arbitration under the applicable laws where enforcement is being sought.
The courts will not recognise or enforce an interna - tional arbitral award if enforcement would be contrary to Canadian public policy. 4.4 Process of Enforcing Arbitral Awards Under most domestic arbitration acts, a party can simply apply to the court to have its domestic arbi - tral award enforced. The limitation period in which to commence enforcement proceedings varies between Canadian provinces, from two to ten years. The enforcement process is relatively streamlined and is intended to facilitate the enforcement of awards subject only to very narrow caveats. In addition, the court’s decision on whether to grant or deny an appli - cation to enforce a domestic arbitral award may be appealed. In order to enforce an international arbitral award, the enforcing party must apply to the applicable court. The application must include the original or a copy of the award, together with the arbitration agreement, attached as exhibits to an affidavit. Neither the New York Convention nor the Model Law sets out limita - tion periods for the enforcement of a foreign arbitral award. However, pursuant to the New York Conven - tion, each contracting state is required to enforce arbi - tral awards in accordance with the rules of procedure in the jurisdiction where the party seeks to enforce it. The Supreme Court of Canada has held that the rules of civil procedure of the jurisdiction where enforce - ment of the foreign arbitral award is sought will apply to those proceedings ( Yugraneft Corp v Rexx Manage- ment Corp , 2010 SCC 19). The result is that limitation periods for the enforcement of foreign arbitral awards will vary, depending on the province in which enforce - ment is sought. 4.5 Costs and Time Taken to Enforce Arbitral Awards The costs and time to enforce domestic or interna - tional arbitral awards depend on the case. A straight - forward application may take eight to 12 months (or longer, depending on court backlog). However, if the defence to enforcement proceedings raises serious issues that could involve a significant inquiry into whether the enforcement could offend public policy (eg, underlying criminality not previously raised before the tribunal), the enforcement proceedings could take
61 CHAMBERS.COM
Powered by FlippingBook