A unified arbitration act adopting international norms has been proposed in Ontario
Participants in domestic arbitration are integrating various international arbitration models, especially in commercial disputes, says Hugh Meighen, a partner at Borden Ladner Gervais LLP in Toronto.
“I’ve referred to it as the internationalization of domestic arbitration, and I think the process is continuing,” he says.
While the trend involves arbitral institutions and arbitration users, Meighen says it also has a statutory element.
In 2020, British Columbia introduced a new Arbitration Act. The new Act is modelled on the Uniform Law Conference of Canada’s Uniform Model Arbitration Act, which was based on the UNCITRAL Model Law on International Commercial Arbitration, according to an article by BLG partners Robert Deane, Craig Chiasson, and Shelby Liesch.
In 2021 in Ontario, the Arbitration Act Reform Committee of the Toronto Commercial Arbitration Society assessed whether the province should have a single, unified Arbitration Act for domestic and international arbitration. The committee endorsed that approach and concluded that the UNCITRAL Model Law on International Commercial Arbitration was an “aspirational standard for all commercial arbitration,” wrote Meighen for Canadian Lawyer. The committee produced a draft of a consolidated commercial arbitration act based on the UNCITRAL Model Law. He said that a single act would align Ontario and Quebec, which has implemented the UNCITRAL Model Law for domestic and international arbitrations.
The UNCITRAL Model Law is the standard for international arbitration in Canada. According to “Arbitration Procedures and Practice in Canada: Overview,” all Canadian jurisdictions other than Quebec have “expressly adopted the UNCITRAL Model Law into their domestic law.”
Meighen says he is following the development of Ontario's proposed unified arbitration act because having a single act governing all domestic and international arbitration would have significant practical consequences.
“That's something I'm curious to see develop,” he says. “It could have a very consequential impact on the way arbitrations are practised here.”
One factor in the growing internationalization of domestic arbitration is the increasing comfort with appointing arbitrators who are either not Canadian or are operating in international markets. This exposes domestic arbitration parties to “foreign trained or foreign-based arbitrators with an international sensibility,” says Meighen.
“As a related point, institutional arbitration appears to be becoming more popular,” he says. “And institutions, when they're called upon to make an appointment for an arbitrator, are often more inclined to appoint non-Canadians to disputes that have a Canadian connection.”
Meighen says international models work well when parties are inclined toward a different legal system, which often arises in Canada, where there is a Quebec-based party.
“I find that arbitrations involving parties from Quebec and another province often benefit from having an international model because international models of arbitration often incorporate elements of both civil and common law.”
With domestic arbitration increasingly adopting international arbitration models, he says practitioners should be familiar with the international arbitration practice to ensure they can navigate the arbitration process more effectively for their clients without being caught by surprise by the norms they may not have encountered in arbitration and court litigation.
Meighen’s arbitration practice is focused on international arbitrations and often works on disputes arising from commercial contracts, construction projects, and the global network of investment treaties. He also represents athletes and sports organizations in arbitrations involving doping matters, carding issues, and other disputes arising in the sports context.
