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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
Senior associate at Woods LLP, Montréal
On 22 March 2017, the new Ontario International Commercial Arbitration Act replaced the previous International Commercial Arbitration Act, which had been in force since 1990, with immediate effect. While the new act does not dramatically alter the international commercial arbitration regime previously in place in Ontario, it does implement a number of significant changes which parties involved in international commercial arbitral proceedings in Ontario should be aware of, including the express adoption of the New York Convention, the adoption of the 2006 amendments to the UNCITRAL Model Law, new provisions on interim measures, and longer limitation periods.
The international commercial arbitration regime in Ontario, the second largest Canadian province, recently received a welcome makeover. On 22 March 2017, the International Commercial Arbitration Act, 2017 (S.O. 2017 chapter 2) (the ‘2017 ICAA’) came into force with immediate effect1, replacing the previous International Commercial Arbitration Act, (R.S.O 1990 chapter I.9) (the ‘1990 ICAA’), which had been in force since 1990. The 2017 ICAA applies to all international commercial arbitrations seated in Ontario, and to awards sought to be recognised or enforced in Ontario, whether they were rendered before or after its coming into force.2
The 2017 ICAA does not fundamentally change Ontario’s international commercial arbitration regime as most aspects of it will remain unchanged. The new law, however, significantly improves the previous regime in many ways; it provides the clarity that was in some respects needed under the 1990 ICAA. It further provides for more detailed rules on interim measures, and generally reflects a more modern and arbitration-friendly approach that will hopefully contribute to making Ontario an even more attractive arbitration seat.
We discuss each of these changes below. However, some background on Canada’s legal framework and the international commercial arbitration regime previously in place in Ontario, is useful to appreciate the significance of the changes effected by the new Act.
Canada is a federal state composed of ten provinces, including Ontario, and three territories.3 The Canadian constitution provides for a division of legislative powers between the federal and provincial governments. While arbitration matters have traditionally been held to be within provincial legislative competence, commercial arbitrations may be subject to either federal or provincial legislation, depending on the subject-matter of the dispute. The international arbitration landscape in Canada is thus, broadly speaking, marked by the existence of two distinct regimes, at the federal level and at the provincial level. This landscape is further complicated by the fact that each province has enacted its own legislation governing international commercial arbitration matters.
At the federal level, Canada acceded to and ratified the New York Convention in 1986 through the enactment of the United Nations Foreign Arbitral Awards Convention Act.4 Most Canadian provinces and territories quickly followed course and passed legislation adopting the New York Convention in their respective jurisdiction. Ontario originally did so in 1986 but repealed this a few years later, as explained in the following.
The same year, Canada also became the first country in the world to adopt the UNCITRAL Model Law on International Commercial Arbitration (the ‘1985 Model Law’), which was codified in the Commercial Arbitration Code, attached as a schedule to the federal Commercial Arbitration Act.5 This federal Act applies to all commercial arbitrations, whether international or domestic, but only when one of the parties to the arbitration is the federal government, one of its agencies or a federal crown corporation, and where the subject matter of the dispute concerns a matter of exclusive federal jurisdiction such as maritime or admiralty. The 1985 Model Law was also implemented at the provincial level, with a slightly different approach for each of the provinces. While some provinces opted for several modifications to the text of the 1985 Model Law, others like Ontario appended it as a schedule to their international commercial arbitration legislation, with limited modifications to its text.
The Uniform Law Conference of Canada ('ULCC') is a body that was established in 1918 to promote uniformity of law throughout Canada. While the recommendations of the ULCC are not binding on either the provincial or federal governments, they are generally regarded as authoritative and tend to be followed. In response to the publication of the 2006 Model Law, the ULCC undertook a review of the existing legislation in Canada, with a view to developing recommendations towards more uniform legislation across the country. In March 2014, the working group delivered a proposed Uniform International Commercial Arbitration Act (the ‘Uniform Act’) to the ULCC, which the ULCC has now approved.6 In line with the working group’s recommendation that all jurisdictions in Canada should be urged to adopt the New York Convention expressly, the Uniform Act proposed by the ULCC provides for the application of the New York Convention (appended as Schedule 1). It also implements the 2006 Model Law (appended as Schedule 2) almost in its entirety, in line with the working group’s policy of departing from its text only for ’good reason’. The Uniform Act also provides for a uniform ten year limitation period for applications to recognise and enforce awards, as opposed to the two-year limitation period enforced in some jurisdictions, which the working group regarded as ‘draconian’. As we explain below in more detail, the 2017 ICAA implements the recommendations of the ULCC in Ontario.
The 1990 ICAA did not expressly incorporate the New York Convention. The New York Convention was implemented in Ontario through a separate piece of legislation, the Foreign Arbitral Awards Act of 1986.7 The Foreign Arbitral Awards Act was however repealed a few years later with the adoption of the 1990 ICAA, which omitted a reference to the New York Convention, considered unnecessary in the light of the specific amendments which had been made to the ICAA. While it was understood that the 1990 ICAA covered all the provisions of the New York Convention such that an express reference to the convention would have been redundant, this nevertheless created ambiguity and made it difficult to determine whether and if so, how, the 1990 ICAA deviated from the New York Convention. The Ontario courts could only rely on the provisions of the 1985 Model Law for the recognition and enforcement of foreign arbitral awards.
Section 2 of the 2017 ICAA now provides that the New York Convention has ‘force of law in Ontario in relation to arbitral awards or arbitration agreements in respect of differences arising out of commercial relationships’, for both arbitral awards and agreements made before and after the coming into force of the Act. It further provides that the Ontario Superior Court of Justice is the designated court for ‘the purpose of seeking recognition and enforcement of an arbitral award pursuant to the Convention’.
The explicit incorporation of the New York Convention into the 2017 ICAA provides more certainty for parties looking to enforce, in Ontario, arbitration awards made elsewhere: they can now expect Ontario courts to apply the New York Convention to recognise and enforce a foreign arbitral award if made in a jurisdiction that is a signatory to the New York Convention. It also eliminates the converse risk that the courts of foreign states may refuse enforcement of awards rendered in Ontario on the basis of non-reciprocity of the New York Convention. Importantly, the adoption of the New York Convention also brings Ontario in line with several other Canadian provinces, which had already given the New York Convention legislative force.8
The 2017 ICAA also provides that the 2006 amendment of the Model Law on International Commercial Arbitration has force of law in Ontario.
As the 2006 Model Law differs from the 1985 Model Law in many ways, the incorporation of the 2006 Model Law into the law of Ontario carries a number of significant changes for international commercial arbitrations seated in Ontario.
First, the 2006 Model Law includes updated provisions on the definition and form of arbitration agreements. Its Article 7 provides for two alternative forms of arbitration agreements, which differ on the requirement they place on the form of an arbitration agreement. Under Option 1, an arbitration agreement must be in writing, a requirement which is fulfilled when its content is ‘recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct or by other means’. Option 1 further provides that the requirement that an arbitration agreement be in writing is met by an electronic communication, including ‘date messages and electronic mail’. Option 2 is less formal, and simply defines arbitration agreements, without defining their form.9 The 2017 ICAA adopts Option 1, which widens the definition contained in the 1990 ICAA. While arbitration agreements must still be in writing to be enforceable, they can now be concluded ‘orally, by conduct, or by other means’. The adoption of Option 1 also expands the previously applicable definition of ‘arbitration agreements in writing’ to include arbitration agreements sent via electronic communication, including email. This change is consistent with the recommendations of the ULCC and will ensure that the definition given to arbitration agreements is flexible enough to grow along with different technologies and evolve over time.
Second, the 2006 Model Law also broadens the powers of arbitral tribunals to grant interim relief. Section 17 of the 1985 Model Law laconically granted arbitral tribunals the power to order such interim measures of protection they considered necessary in respect of the subject-matter of the dispute, but provided no guidance as to the definition of interim measures, the relevant tests to apply, or the standards for enforcement of orders or awards granting interim relief. The 2006 Model Law filled this gap. Not only does it define interim measures, it also sets out the ability of tribunals to issue interim measures in detail: tribunals may grant interim measures to preserve the status quo, prevent harm or prejudice and to preserve assets or evidence. Importantly – and somewhat controversially – the 2006 Model Law empowers arbitral tribunals seated in the enacting jurisdiction to make ex parte ‘preliminary orders’. It also makes orders or awards for interim measures enforceable in a similar manner to other awards (a feature which already existed under the 1990 ICAA).
By adopting the 2006 amendments to the Model Law, the 2017 ICAA incorporates a regime for interim measures which is significantly broader than the one contained in the ICAA 1990. While the previous Act did allow arbitral tribunals to grant interim relief as per Article 17 of the 1985 Model Law, the extent of this jurisdiction was unclear, which often resulted in the parties turning to state courts for interim relief. The clarity brought by the 2017 ICAA is a positive development for international commercial arbitrations seated in Ontario.
Third, the 2006 Model Law also provides that the party relying on an award or applying for its enforcement shall supply the original award or a copy thereof. Under the 1985 Model Law previously incorporated into the 1990 ICAA, a party relying on an award or applying for its enforcement had to supply both the duly authenticated original award or a certified copy thereof and the original arbitration agreement or a certified copy thereof. As a result, under the new Ontario Act, the party seeking to rely upon an award or to enforce it will no longer need, at least in the first instance, provide the arbitration agreement or a copy of it.
It is worth noting that, like its predecessor Act, the 2017 ICAA also departs from the 2006 Model Law in some respects, albeit limited. For instance, when the parties have failed to designate the rules applicable to the substance of the dispute, the 2006 Model Law requires the arbitral tribunal to choose an applicable law by following the conflict of laws principles that it considers applicable. In contrast, the 2017 ICAA adopts the ‘voie directe’ or ‘direct choice method’ and gives the tribunal the freedom to ‘apply the rules of law it considers to be appropriate given all the circumstances respecting the dispute’ in order to determine the rules applicable to the substance of the dispute. Another example where the 2017 ICAA departs from the Model Law is its Section 11, which allows appeals against an arbitral tribunal’s decision denying jurisdiction. Section 16(3) of the 2006 Model Law authorises a request to the court of the enacting jurisdiction only where the arbitral tribunal determines that it has jurisdiction, and is silent on whether such request could apply where the arbitral tribunal determines that it lacks jurisdiction (despite the term ‘appeal’, Section 11 of the 2017 ICAA seems in fact to contemplate a challenge of a tribunal’s decision denying jurisdiction, as opposed to an appeal per se). Further minor modifications depart from the 2006 Model Law such as the provision on consolidation of arbitral proceedings (Section 8 of the 2017 ICAA), and the provision on a stay of proceedings pending a court’s referral of parties to arbitration (Section 9 of the 2017 ICAA).
The 2017 ICAA sets a limitation period of ten years for the enforcement and recognition of an arbitral award. This delay starts running from the date the award was rendered, or, when proceedings were initiated to set aside the award, from the date of termination of such proceedings. The previous limitation period for the enforcement of an arbitration award was of two years. This change is in line with the recommendations of the ULCC which, as mentioned, had found that a two year limitation period was draconian.
The 2017 ICAA brings important changes to the international commercial arbitration regime in force in Ontario. The express adoption of the New York Convention provides clarity as to the status and application of the New York Convention in Ontario. With the 2017 ICAA, Ontario is the first Canadian province to adopt the 2006 amendments to the Model Law, in line with ULCC’s policy recommendation to depart from the text of the 2006 Model Law only for ‘good reason’. Ontario has implemented the 2006 Model Law almost in its entirety and made only a few minor modifications to its text. The incorporation of the 2006 Model Law establishes a more flexible definition of arbitration agreements, more relaxed rules to prove the existence of an award for enforcement purposes, and a more detailed set of rules for interim measures. Finally, the 2017 ICAA extends the limitation period for enforcement applications to ten years, thus granting award creditors more time to bring enforcement or recognition applications.
These are welcome improvements to Ontario’s international commercial arbitration regime. They confirm Ontario’s status as an arbitration friendly jurisdiction, and may invite increased arbitrations in cities like Toronto and Ottawa. They also bring clarity and modernisation to the applicable rules, and represent an important step towards harmonising the international commercial regime across the country. It is to be hoped that the other Canadian provinces will follow course and adopt similar amendments.
The 2017 ICAA is available at http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4175 and the 1990 ICAA is available at https://www.ontario.ca/laws/statute/90i09.
The ICAA is contained in Schedule 5 of Ontario’s Burden Reduction Act, 2017, S.O. 2017, c.-2, Bill 27. As the Bill’s title indicates, and the explanatory notes that come with it further confirm, the ‘Bill is part of a government initiative to reduce the regulatory burden on business and to achieve a cost savings for government’.In addition to 2017 ICAA, there are other statutes attached to the Burden Reduction Act 2017 which may have an impact on the conduct of international arbitration proceedings in Ontario, including but not limited to the International Choice of Court Agreement Convention Act, 2017, the International Electronic Communications Conventions Act 2017, and the International Recognition of Trusts Act 2017, and the International Sale of Goods Act Amendments.
This effectively means that Canada has fourteen jurisdictions: one for each province (Ontario, Quebec, British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador); one for each of the three territories (the Yukon, Northwest Territories and Nunavut), and one for the federal system. For the sake of simplicity, in the discussion that follows, we refer to ‘provinces’ and to ‘provincial’ jurisdiction and laws as comprising both provinces and territories.
United Nations Foreign Arbitral Awards Convention Act, R.S.C. 1985, c. 16 (2nd Supp.).
Commercial Arbitration Act, R.S.C. 1985, c. 17 (2nd Supp.), am R.S.C. 1985, c. 1 (4th Supp.).
The final report of the working group dated March 2014 is available at www.ulcc.ca/images/stories/2013_pdfs_en/2013ulcc0040.pdf.
Foreign Arbitral Awards Act, 1986, S.O 1986, c.25.
Some provinces implemented the New York Convention within the same statute as the implementation of the Model Law (for instance Alberta, New Brunswick, Newfoundland and the Northwest Territories, Nova Scotia, Prince Edward Island and Ontario) and others by way of separate statute (British Columbia, Saskatchewan, and Yukon).
Option 2 defines ‘arbitration agreement’ as ‘an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not’.