On April 9 2018 British Columbia introduced amendments to its International Commercial Arbitration Act, with the aim of aligning it with accepted international standards. In so doing, the government hopes to position Vancouver as a more desirable location to host international commercial arbitration proceedings. The bill was passed on April 12 2018 and awaits royal assent before coming into force.

Background

As a federal state, Canada's provinces each have their own arbitration-focused legislation. British Columbia has separate legislation for domestic and international arbitration, respectively. For international arbitration, the current legislation is based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law 1985. This law was comprehensively updated in 2006 and British Columbia's proposed amendments to its legislation reflect those updates.

Proposed amendments

The most significant proposed change to the legislation is the introduction of rules relating to interim measures and the enforceability of such arbitral orders. The proposed amendments do not contemplate emergency relief where a tribunal has yet to be constituted, other than by application to the court, which most major institutional arbitration rules address.

Further, the amendments clarify that the former stay provision, which allowed parties to apply to the courts to stay court proceedings in favour of arbitration only before "service of any pleading or taking any other step in the proceedings" is to be altered in favour of a less stringent standard, allowing stay applications by parties before they submit their "first statement on the substance of the dispute". This change in language brings the stay provision in line with the UNCITRAL Model Law 2006.

The amendments add new privacy and confidentiality provisions, which keep private:

  • arbitral awards;
  • proceedings;
  • evidence; and
  • documents and information relating to the arbitration which are not otherwise in the public domain.

However, the disclosure restrictions do not apply if disclosure is:

  • required by law;
  • authorised by a competent court; or
  • required to protect or pursue a legal right (including enforcing or challenging an arbitral award).

In addition, the amendments are intended to consider technological changes. For example, the requirement that an arbitration agreement be in writing now expressly includes reference to electronic communications. The proposed legislation also confirms that third-party funding is not contrary to public policy in British Columbia.

Other amendments include updating and modernising the language and references throughout the legislation.

Comment

The proposed amendments are intended to modernise British Columbia's international arbitration legislation and adopt well-developed international standards for international arbitration practice. This should make British Columbia an attractive seat for international commercial arbitration.

For further information on this topic please contact Michelle T Maniago at Borden Ladner Gervais LLP by telephone (+1 604 687 5744) or email (mmaniago@blg.com). The Borden Ladner Gervais LLP website can be accessed at www.blg.com.

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