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What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?
Recognition and enforcement follow the UNCITRAL Model Law and New York Convention (ie, the court must be provided with the arbitration agreement and the award).
The arbitral award must state the reasons on which it is based, unless the parties have agreed that no reasons are required.
Timeframe for delivery
Are there any time limits on delivery of the award?
International arbitration legislation is silent on time limits for delivery of an award, although limits are set on corrections, interpretations and additions to the award. This legislation does contemplate (by providing for extensions of time) that parties may stipulate a time limit in their arbitration agreement.
Domestic arbitration legislation limits the time allowed to render an award in one of two ways. First, a time limit may be provided for the duration of the arbitration process, where an award must be rendered within X months from the commencement of the arbitration. Alternatively, an award may be required within X months of the conclusion of the arbitration hearing.
The time given for delivery of an award varies between provinces. In Nova Scotia, domestic legislation provides that the arbitrator must render a decision within 10 days of the completion of the arbitration. Domestically, in British Columbia, the short rules provide for a decision to be rendered within 30 days of the closing of the hearings, whereas the standard rules allow for 60 days after the close of the hearings. Domestic legislation in Newfoundland and Labrador, the Northwest Territories, Prince Edward Island and the Yukon allow three months after entering on the reference to have the award rendered.
Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?
Legislation does not impose limitations on remedies and recently, in the enforcement context, the Court of Appeal for British Columbia held that an arbitral award creditor is entitled to the full panoply of enforcement remedies available to any creditor of a court judgment.
What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?
By the arbitral tribunal
Once appointed, arbitrators may award interim relief without prior authorisation from a court. Under international arbitration legislation, arbitral tribunals are granted broad powers to issue interim measures. Unless otherwise agreed, the arbitral tribunal may, at the request of a party, order any party to take such interim protection measures that the tribunal considers necessary in respect of the subject matter of the dispute. The arbitral tribunal may also require any party to provide appropriate security in connection with such interim measures.
Domestic legislation in Ontario, Alberta, Manitoba, New Brunswick, Nova Scotia and Saskatchewan also provides broad powers to arbitral tribunals to make an order on a party’s request for the detention, preservation or inspection of property and documents which are the subject of the arbitration and may order a party to provide security in that connection. In British Columbia, unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection that the arbitral tribunal deems necessary with respect to the subject matter of the dispute and may order a party to provide security in connection with such a measure.
By the courts Courts have wide discretion to grant interim relief orders and retain their inherent powers to grant provisional measures before, or during, arbitration on the application of one of the parties. Canadian courts respect the arbitral process and will not allow parties to disguise interference with the arbitration proceedings as an application for urgent or provisional measures. That said, judicial assistance may be sought by a party and will not be considered inconsistent with its right to arbitrate its dispute (ie, a party may go to court for interim measures at any point before, during or after arbitration proceedings). Canada’s commitment to arbitration suggests that where required, a court should make an interim order preserving the parties’ position until the matter can be brought before the arbitrator as per the parties’ agreement.
Can interest be awarded?
International arbitration legislation in Canada does not provide explicitly for the award of interest, except in British Columbia. Domestic legislation in some provinces provides that the arbitral tribunal has the same power with respect to interest as the court has under provincial court order interest legislation.
Parties may expressly provide for the power to award interest in their agreement or the necessity to do so may arise as part of an arbitrator’s obligation to apply the general law. Where an arbitration agreement is broad enough to encompass all claims and disputes between parties, it has been recognised that arbitrators have the power to award interest.
At what rate?
Generally, if there is no contractually agreed rate, the rate of the governing substantive law of the parties’ agreement is most likely to prevail, although in some circumstances, it may be argued that the law of the seat or the place of enforcement should apply.
Is the award final and binding?
Yes, awards are final and binding.
What if there are any mistakes?
Mistakes can be corrected consistently with the Model Law (ie, within 30 days of the parties’ receipt of the award, unless the parties have agreed on an alternative period), including any clerical, typographical or computational errors. Reconsideration of substantive matters is not permitted.
Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
No. The provisions of the Model Law and the Code of Civil Procedure setting out the grounds for challenging an arbitral award are generally considered to be peremptory, although there are provincial variations.
What is the procedure for challenging awards?
Parties must follow the rules of court of the particular province in applying to challenge an award (eg, in British Columbia by petition, which requires providing the award, the arbitration agreement and the alleged grounds to challenge or set aside the award).
On what grounds can parties appeal an award?
For international awards, the Model Law’s limited grounds apply. For the most part, international arbitral awards cannot be appealed.
Provincial legislation provides similarly limited rights to appeal an award. Generally, an appeal can be brought only on a question of law, not a question of fact. In some provinces, there is no right of appeal unless all parties have agreed to such a right or consented to an appeal. In other provinces, a right of appeal may be subject to obtaining leave to appeal from a judge or superior court of the province.
What steps can be taken to enforce the award if there is a failure to comply?
The international legislation provides for Model Law and New York Convention recognition and enforcement rights. Creditors of international arbitral awards generally have access to the same enforcement remedies available to domestic litigants.
Can awards be enforced in local courts?
Yes, the applicable legislation identifies which level of court – usually the superior court in the province – has jurisdiction.
How enforceable is the award internationally?
Canadian awards are enforceable in the same way as any other foreign award subject to the New York Convention. To the extent that a foreign court may be in a jurisdiction which has not signed the New York Convention – of which there are fewer and fewer – Canadian courts have a good reputation internationally for attracting the requisite comity (eg, an independent judiciary operating in an environment considered among the most limited for corruption in the world).
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
This is assessed on a case-by-case basis and Canadian courts have held both against and in favour of state immunity, depending on the circumstances.
Are there any other bases on which an award may be challenged, and if so, by what?
No, Canada follows the limited grounds set out in the Model Law.
How enforceable are foreign arbitral awards in your jurisdiction?
A party with a foreign arbitral award should expect its award to be enforced, unless the extremely limited grounds to refuse enforcement apply. Canadian courts are highly deferential to arbitration and uphold the principles set out in the New York Convention, of which Canada is a signatory.
Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
Courts will approach this issue on a case-by-case basis. Courts in the past have recognised the permissive nature of this issue under the New York Convention and, in certain circumstances, may enforce an award that has been set aside at the seat. However, Canadian courts will certainly consider the status of an award at the seat, including whether a challenge to it has not yet been determined.
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