Acknowledgements to the Second Edition
Acknowledgements to the First Edition
Foreword to the First Edition
Table of Cases
Glossary
Practice Notes Index
Chapter 1, Introduction to Commercial Arbitration
1.1 Historical Background
1.2 Modern Hallmarks of Arbitration
1.3 Other Common Forms of Dispute Resolution
1.3.1 Mediation
1.3.2 Conciliation
1.3.3 Drafting a Mediation/Conciliation Clause
1.3.4 Mini-Trial
1.3.5 Expert Determination and Valuation
1.3.6 Amiable Compositeur and Decisions Ex Aequo et Bono
1.3.7 Final Offer Arbitration
1.3.8 Hybrid Forms of Dispute Resolution
1.4 When to Consider Arbitration
Chapter 2, Application and Scope of the Legislation
2.1 Overview
2.2 Application and Scope of Federal Legislation
2.3 Provincial Legislation
2.4 Washington Convention
2.5 Application and Scope of the Provincial International Commercial Acts
2.6 Contracting out of the International and Domestic Acts
2.7 Oral Arbitration Agreements
2.8 Inter-Provincial Arbitration
2.9 Practice Notes--Characterizing the Agreement
2.10 Proper Law of the Contract Distinguished from the Law of the Arbitration
2.11 Judicial Interpretation of the Domestic, International and Federal Acts
2.12 Party Autonomy
Chapter 3, The Arbitration Agreement
3.1 Arbitration Agreement Defined
3.2 Autonomy of Arbitration Agreement
3.3 The Law Applicable to the Agreement to Arbitrate
3.4 Arbitration Agreement as Contract
3.4.1 Consensus Ad Idem
3.4.2 Implied Agreement to Arbitrate
3.4.3 Incorporation by Reference
3.5 Associated Parties and Assignees
3.5.1 Operation of Law
3.5.2 Additional Parties by Agreement of the Parties
3.5.3 By Later Agreement of the Parties
3.6 Court Enforcement under the Domestic Acts
3.6.1 Incapacity
3.6.2 Invalidity
3.7 Court Enforcement under the Model Law
3.7.1 Null and Void
3.7.2 Inoperative
3.7.3 Incapable of Being Performed
3.8 Termination
3.8.1 Death
3.8.2 Bankruptcy
3.9 Interpreting the Arbitration Agreement
3.10 Public Policy Considerations and Statutory Claims
3.11 Scott v. Avery Clauses
3.12 Negotiating and Drafting an Arbitration Agreement
3.12.1 General Considerations
3.12.2 What Is to Be Arbitrated: The Scope of the Clause
3.12.3 Practice Note--Example of an Ad Hoc Clause
3.12.4 Before Whom is It to Be Arbitrated?
3.12.5 Where Is It to Be Arbitrated?
3.12.6 Practice Note--Choosing the Place of Arbitration
3.12.7 Institutional or Ad Hoc
3.13 Commencing Arbitration and Service
3.14 Third Party and Multi-Party Disputes
3.15 Consumer and Class Actions
3.16 Optional Arbitration Clauses
3.16.1 Practice Note--Optional Arbitration Clauses 1
3.17 Agreement to Arbitrate after a Dispute has Arisen: Submissions
3.18 Stepped or Progressive Dispute Resolution Clauses
3.18.1 Negotiation
3.18.2 ADR
3.18.3 Practice Note-enforcement of Progressive or Stepped Clauses
3.19 Breach of Arbitration Agreement
Chapter 4, Commencing the Arbitral Process and Choosing an Arbitrator
4.1 Rules Regarding Commencement
4.2 Form of Commencing Document
4.3 Service of Commencing Document
4.3.1 Practice Note--Commencing Arbitration
4.4 Time Limits and Limitation Periods
4.4.1 Time Limits in the Agreement
4.4.2 Relief from Contractual Time Limits
4.4.3 Limitation Act time limits
4.4.4 Practice Note--Time Limits
4.5 Commencement and Empowerment
4.6 Composition of the Arbitral Tribunal
4.7 Choosing an Arbitrator
4.7.1 What to Look For In an Arbitrator
4.7.2 Finding an Arbitrator
4.7.3 Party Appointment of a Sole Arbitrator
4.7.4 Appointing Authority Appointments
4.7.5 Institutional Assistance
4.7.6 Court Assistance in Appointment
4.7.7 Three Arbitrators
4.7.8 Powers of the Chair
4.8 Independence and Impartiality
4.8.1 Independence
4.8.2 Impartiality and Bias
4.8.3 Disclosure Guidelines
4.8.4 Nationality
4.8.5 The Partisan Arbitrator
4.8.6 Practice Note--Choosing an Arbitrator
4.9 Challenge
4.9.1 Reasonable Apprehension of Bias
4.9.2 Qualifications of Arbitrators
4.9.3 Method of Challenge
4.9.4 Practice Note--Challenge
4.9.5 Waiver
4.10 Counsel to the Tribunal
4.11 Clerks and Registrars
4.12 Termination of Arbitrator's Mandate
4.13 Arbitrator's Immunity from Suit
4.14 Arbitrator's Fees
4.14.1 Practice Note--Arbitrator's fees
Chapter 5, The Arbitral Tribunal's Jurisdiction
5.1 The Jurisdiction to Decide Jurisdiction
5.1.1 Jurisdiction under the Domestic Acts
5.1.2 Jurisdiction under the Model Law
5.1.3 Jurisdiction of the Court to Determine the Arbitrator's Jurisdiction
5.2 Jurisdiction over the Parties
5.3 Jurisdiction to Determine the Applicable Rules of Law
5.4 Subject Matter Jurisdiction and Jurisdiction to Craft a Remedy
5.5 Objection to Jurisdiction
5.5.1 Waiver
5.5.2 Court Review of Jurisdiction
5.6 Exceeding Authority during the Arbitration
5.7 Jurisdiction to Determine Procedure
5.8 Jurisdiction to Make Interim Preservation Awards
5.8.1 The Test for an Interim Measure of Protection
5.8.2 Practice Note--Interim Measures
5.9 Jurisdiction to Award Interest
5.9.1 Interest under the Domestic Acts
5.9.2 Interest under the Model Law
5.10 Jurisdiction to Award Costs
5.10.1 Costs under the Domestic Acts
5.10.2 Costs under the Model Law
5.10.3 Practice Notes--Costs
5.11 Jurisdiction to Award Security for Costs
5.11.1 Security for the Tribunal's Fees and Costs
5.11.2 Jurisdiction to Award Security for the Costs of a Party
5.12 Jurisdiction upon Settlement
5.12.1 Practice Note--Settlement
Chapter 6, Conduct of Arbitral Proceedings
6.1 Rules of Procedure
6.2 Preliminary Hearings and Preliminary Meetings
6.2.1 Practice Notes--First Procedural Hearing
6.2.2 Communications
6.2.3 Conduct of Counsel
6.3 Statements
6.3.1 Domestic Acts
6.3.2 Model Law
6.3.3 Supplementary Statements or Amending Statements
6.3.4 Failure to Submit Statements
6.3.5 Practice Note--Pleadings
6.4 Terms of Reference and Submissions
6.5 Production of Documents and Pre-hearing Discovery
6.5.1 Document Disclosure and Exchange
6.5.2 Pre-hearing Oral Examination
6.5.3 Discovery from Non-parties
6.6 Method of Hearing
6.6.1 Basic Requirements for a Hearing
6.6.2 Waiver
6.7 Adjournments
6.8 Time and Place of Arbitration Hearing
6.8.1 Distinguishing the Place of Arbitration from the Place of Hearing
6.9 Privacy and Confidentiality
6.9.1 Privacy of the Arbitration
6.9.2 Confidentiality of the Arbitration
6.9.3 Practice Note--Confidentiality
6.9.4 Exceptions to Confidentiality
6.9.5 The Deemed Undertaking Rule
6.10 Amicus Curiae
6.11 Delay of Proceedings
6.11.1 Delay by a Respondent
6.11.2 Delay by Claimant
6.11.3 Delay by Tribunal
6.12 Rules of Evidence
6.12.1 Domestic Acts
6.12.2 Model Law
6.12.3 Rulings on Evidence
6.13 Evidence at a Hearing
6.13.1 Witness Statements as Evidence
6.13.2 Oral Evidence under Oath
6.13.3 Compelling Answers from Witnesses
6.13.4 Compelling Non-parties to Appear
6.13.5 Obtaining Testimony and Documents from a Witness out of the Jurisdiction
6.13.6 Restrictions on Evidence
6.14 Expert Evidence
6.14.1 Expert Appointed by Tribunal
6.14.2 Expert Reports
6.14.3 Other Methods of Presenting Expert Evidence
6.15 Order of Presentation
6.16 Exclusion Orders
6.17 Hearsay v. Natural Justice
6.18 Cross-examination
6.18.1 Cross-examination and Natural Justice
6.18.2 Practice Note--Time Limits on Examinations
6.19 Inspection of Property or Documents
6.20 Representation by Counsel
6.21 Keeping a Record
6.22 Contractual Time Limits
6.23 Practice Note--The Arbitral Hearing
Chapter 7, Court Involvement in the Arbitral Process
7.1 Introduction
7.2 Constitutionality of Agreement to Oust Court's Jurisdiction
7.3 Breach of the Agreement to Arbitrate
7.4 Stay of Court Proceedings
7.4.1 The Standard of Review
7.4.2 Grounds to Refuse a Stay under the Domestic Acts
7.4.3 Grounds to Refuse a Stay under the Model Law
7.4.4 Arbitration Agreement Covering only Part of Court Claim
7.4.5 Additional Parties
7.4.6 Residual Discretion to Refuse a Stay
7.4.7 Can the Plaintiff Seek a Stay?
7.4.8 Lack of Remedy
7.4.9 Effect of Refusing a Stay
7.4.10 Removing a Stay
7.4.11 Practice Note--Staying Court Proceedings
7.5 Appeal of Decision Regarding Stay of Court Proceedings
7.6 Enjoining Arbitration and Anti-suit Injunctions
7.6.1 Enjoining Arbitration
7.6.2 Anti-suit Injunctions
7.7 Court Appointment of Arbitrator
7.7.1 Domestic Acts
7.7.2 Model Law
7.7.3 Appointment of Substitute Arbitrator
7.7.4 Practice Note--Court Appointment of Arbitrators
7.8 Interim Preservation Orders
7.9 Questions of Law
7.10 Court Enforcement of Arbitral Orders and Directions
7.10.1 Domestic Acts
7.10.2 Model Law
7.11 Appeals from Interim Preservation Orders
7.12 Court Assistance in Compelling Discovery from a Party
7.12.1 In the Jurisdiction of the Place of Arbitration
7.12.2 Practice Note--Court Assistance in Discovery of a Non-party
7.12.3 Court Aided Discovery in the United States
7.13 Court Assistance in Taking Evidence
7.13.1 Domestic Acts
7.13.2 Model Law 316
7.13.3 Practice Note--Court Assistance in Compelling Witness Attendance
7.14 Court Ordered Extension of Time Limits
7.14.1 Time Limits in the Agreement
7.14.2 Time Limits under the Applicable Law of the Contract
7.14.3 Time Limits under the Arbitration Acts
7.15 Court Ordered Consolidation
7.16 Court Involvement following Delay or Default of a Party
7.17 Declaration of Invalidity of Arbitration
7.18 Bankruptcy
7.18.1 Petitioning a Party into Bankruptcy
7.18.2 The Effect of Bankruptcy on the Agreement to Arbitrate
7.19 Removal of Arbitrator
7.19.1 Domestic Acts
7.19.2 Removal of Arbitrator under the Model Law
7.19.3 Failure to Treat Parties Fairly and with Equality
7.19.4 Reasonable Apprehension of Bias
7.19.5 Practice Note--Removal of Arbitrator
7.20 Court Review of Jurisdiction
7.20.1 Domestic Acts
7.20.2 Court Review of Jurisdiction under Model Law
7.20.3 Standard of Review
7.20.4 Practice Note--Court Review of Jurisdiction
7.21 Court Ordered Explanation of Award and Deliberative Secrecy
7.22 Appeals and Setting Aside of Awards
7.23 General or Residual Powers of Involvement under the Domestic Acts
Chapter 8, The Award
8.1 Definition
8.2 Final, Partial and Interim Awards
8.3 Decision of the Tribunal
8.4 Application of Law and Equity
8.4.1 The Award Must Be in Accordance with Law
8.4.2 In Accordance with the Terms of the Contract and Usage of the Trade
8.4.3 Ex Aequo et Bono
8.5 Remedies
8.5.1 Adaption
8.5.2 Rectification
8.5.3 Punitive Damages
8.6 Interest
8.6.1 Domestic Acts
8.6.2 Model Law
8.7 Costs and Attorney's Fees
8.7.1 Costs under the Model Law
8.7.2 Costs under the Domestic Acts
8.7.3 Practice Note--Costs
8.8 Cost Consequences of Offers to Settle
8.9 Costs of the Arbitrators
8.10 Form and Content of the Award
8.10.1 Dissenting Opinions
8.10.2 Practice Note--Writing an Award
8.11 Denomination of Award
8.12 Settlement
8.13 Place of Award
8.14 Binding Nature of Award
8.14.1 Binding as between the Parties
8.14.2 Recognized by the Court: Res Judicata and Issue Estoppel
8.14.3 Effect on Third Parties
8.15 Explanation and Correction of Errors and Deliberative Secrecy
8.15.1 Explanations
8.15.2 Correction of Errors and Additional Awards
8.16 Practice Notes--Reviewing an Award
8.17 Confidentiality of the Award
8.18 Time Limits for Rendering Award
Chapter 9, Remedies against Awards
9.1 Appeal of Procedural and Interlocutory Orders
9.2 Appeal of Awards
9.2.1 Interim Awards
9.2.2 Appeals under the Model Law
9.2.3 Domestic Appeals
9.2.4 Limiting the Right of Appeal
9.2.5 Practice Note--Appeals
9.2.6 Time Limits for Appeals
9.2.7 Application for Leave to Appeal
9.2.8 Practice Notes--Leave to Appeal
9.2.9 Appeal of the Decision Refusing Leave to Appeal
9.2.10 Appeals without Leave
9.2.11 Appeal on Questions of Fact or Mixed Fact and Law
9.2.12 Appeal of Costs
9.2.13 Powers of the Court on Appeal
9.3 Enforcement of Award Pending Appeal
9.4 Appeal to the Court of Appeal
9.5 Setting aside an Award
9.5.1 Grounds for Setting Aside an Award
9.6 The Standard of Review
9.6.1 Lack of Jurisdiction
9.6.2 Excess of Jurisdiction
9.6.3 Lack of Proper Conduct or Procedure
9.7 Waiver
9.7.1 Waiver by Express Agreement
9.7.2 Waiver by Conduct
9.8 Award under Model Law Conflicting with Public Policy
9.9 Omissions
9.10 Time Limit for Challenge
9.11 Extension of Limitation Periods
9.12 Stay Pending Application to Set Aside Award
Chapter 10, Recognition and Enforcement of Awards
10.1 Recognition
10.2 Enforcement under the Domestic Acts
10.2.1 Unusual Remedies
10.3 Enforcement of International Awards
10.3.1 The New York Convention
10.3.2 The Model Law
10.3.3 Similar Treatment of International Awards
10.3.4 Grounds for Refusing Recognition or Enforcement
10.3.5 Public Policy
10.3.6 Practice Note--Public Policy
10.3.7 Waiver or Estoppel
10.3.8 Stay of Enforcement
10.3.9 Enforcement Notwithstanding Supervisory Court Annulment
10.4 Limitation Periods
10.4.1 Domestic Act Limitation Periods
10.4.2 Limitation Periods regarding International Awards
10.5 Practice Note--Enforcement of Awards
10.5.1 Domestic Acts
10.5.2 International Acts
10.6 Enforcement of Partial and Interim Awards
Appendices
Redfern Schedule
Alberta Arbitration Act
Alberta International Arbitration Act
British Columbia Commercial Arbitration Act
British Columbia International Commercial Arbitration Act
British Columbia Foreign Arbitral Awards Act
Ontario Arbitration Act
Ontario International Commercial Arbitration Act
UNCITRAL Model Law
UNCITRAL Arbitration Rules (2010)
IBA Guidelines on Conflicts of Interest in
International Arbitration
IBA Rules on the Taking of Evidence in International
Commercial Arbitration
ADR Institute of Canada National Arbitration Rules
ADR Institute of Canada Mediation Rules
ADR Chambers Arbitration Rules
ADR Chambers International Arbitration Rules
CCAC General Commercial Arbitration Rules
CCAC International Arbitration Rules
American Arbitration Association ICDR Rules
ICC Rules of Arbitration
LCIA Arbitration Rules
Index
