Chapter 1, Introduction to Commercial Arbitration

1.1 Historical Background

1.2 Scope of This Text

1.3 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 Arbitration

1.3.6 Amiable Compositeur and decisions ex aequo et bono

1.3.7 When to Consider Arbitration

1.3.8 Expert determination and Valuation

1.3.9 Hybrid Forms of Dispute Resolution

Chapter 2, Application and Scope of the Legislation

2.1 Introduction

2.2 Application and Scope of the Provincial International Commercial Acts

2.3 Oral Arbitration Agreements

2.4 Inter-Provincial Arbitration

2.5 Practice Notes

2.6 Contracting Out of the International and Domestic Acts

2.7 Proper Law of the Contract Distinguished from the Law of the Arbitration

2.8 Application and Scope of Federal Legislation

2.9 Judicial Interpretation of the Domestic, International and Federal Acts

Chapter 3, The Arbitration Agreement

3.1 Arbitration Agreement Defined

3.2 Autonomy Of Arbitration Agreement

3.3 Arbitration Agreement As Contract

3.3.1 Consensus ad idem

3.3.2 Incorporation by reference

3.4 Associated Parties and Assignees

3.4.1 Operation of Law

3.4.2 Additional Parties by Agreement of the Parties

3.4.3 By Later Agreement of the Parties

3.5 Enforcement Under The Domestic Acts

3.5.1 Incapacity

3.5.2 Invalidity

3.6 Enforcement Under The Model Law

3.6.1 Null and Void

3.6.2 Inoperative

3.6.3 Incapable of Being Performed

3.7 Termination

3.7.1 Death

3.7.2 Bankruptcy

3.8 Interpreting The Arbitration Agreement

3.8.1 Interpreting the scope of the agreement

3.9 Public Policy Considerations and Statutory Claims

3.10 Scott v. Avery Clauses

3.11 Breach of Arbitration Agreement

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

3.12.4 Before Whom is it to be Arbitrated?

3.12.5 Where is it to be Arbitrated?

3.12.6 Practice Note

3.12.7 How is it to be Arbitrated

3.13 Administration: Institutional Or Ad Hoc

3.13.1 Institution Arbitration

3.13.2 Ad Hoc

3.14 Commencing Arbitration and Service

3.15 Third Party and Multi-Party Disputes

3.16 Optional Arbitration Clauses

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

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

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

4.5 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

4.8 Independence and Impartiality

4.8.1 Independence

4.8.2 Impartiality and Bias

4.8.3 The Partisan Arbitrator

4.8.4 Nationality

4.8.5 Practice Note

4.9 Challenge

4.9.1 Reasonable Apprehension of Bias

4.9.2 Qualifications of Arbitrators

4.9.3 Method of Challenge

4.10 Termination of Arbitrator's Mandate

4.11 Arbitrator's Immunity From Suit

4.12 Arbitrator's Fees

4.12.1 Practice Note

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

5.2 Jurisdiction over the parties

5.3 Subject Matter Jurisdiction

5.4 Objection To Jurisdiction

5.5 Exceeding Authority during the Arbitration

5.6 Jurisdiction To Determine Procedure

5.7 Jurisdiction To Make Interim Preservation Awards

5.8 Jurisdiction To Award Interest

5.8.1 Interest under the Domestic Acts

5.8.2 Interest under the Model Law

5.9 Jurisdiction To Award Costs

5.9.1 Costs under the Domestic Acts

5.9.2 Costs under the Model Law

5.9.3 Practice Notes

5.10 Jurisdiction To Award Security For Costs

5.10.1 Security for the Tribunal's Fees and Costs

5.10.2 Jurisdiction to Award Security for the Costs of a Party

5.11 Jurisdiction To Determine The Applicable Rules of Law

5.12 Jurisdiction Upon Settlement

5.12.1 Practice Note

Chapter 6, Conduct of Arbitral Proceedings

6.1 Rules Of Procedure

6.2 Preliminary Hearings And Preliminary Meetings

6.2.1 Practice Notes

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

6.4 Terms Of Reference and Submissions

6.5 Production of Documents and Pre-Hearing Discovery

6.5.1 Discovery From a Party

6.5.2 Discovery From Non-Parties

6.6 Method Of Hearing

6.6.1 Basic Requirements for a Hearing

6.7 Waiver

6.8 Adjournments

6.9 Time and Place of Arbitration Hearing

6.9.1 Distinguishing the Place of Arbitration from the Place of Hearing

6.10 Privacy and Confidentiality

6.10.1 Privacy of the Arbitration

6.10.2 Confidentiality of the Arbitration

6.10.3 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 Evidence at a Hearing

6.12.1 Witness Statements as Evidence

6.12.2 Oral Evidence Under Oath

6.12.3 Compelling Answers from Witnesses

6.12.4 Compelling Non-Parties to Testify

6.12.5 Obtaining Testimony and documents from Witness out of the Jurisdiction

6.12.6 Restrictions on Evidence

6.13 Expert Evidence

6.13.1 Expert Appointed by Tribunal

6.13.2 Expert reports

6.13.3 Other Methods of Presenting Expert Evidence

6.14 Order of Presentation

6.15 Exclusion Orders

6.16 Rules of Evidence

6.16.1 Domestic Acts

6.16.2 Model Law

6.17 Hearsay v. Natural Justice

6.18 Cross-Examination and Natural Justice

6.18.1 Rulings on Evidence

6.19 Inspection of Property or Documents

6.20 Representation By Counsel

6.21 Keeping a Record

6.22 Time Limits

6.23 Practice Notes

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 Agreement to Arbitrate

7.4 Stay of Court Proceedings

7.4.1 Under the Domestic Acts

7.4.2 Stay of Court Proceedings under the Model Law

7.4.3 Arbitration Agreement Covering Only Part of Court Claim

7.4.4 Can the Plaintiff Seek a Stay

7.4.5 Lack of Remedy

7.4.6 Practice Note

7.4.7 Inherent Jurisdiction and Additional Parties

7.5 Effect of Refusing a Stay

7.6 Removing a Stay

7.7 Appeal of Decision Regarding Stay of Court Proceedings

7.8 Court Appointment of Arbitrator

7.8.1 Domestic Acts

7.8.2 Model Law

7.8.3 Appointment of Substitute Arbitrator

7.8.4 Practice Note

7.9 Interim Preservation Orders

7.10 Court Ordered Security For Costs

7.11 Questions of Law

7.12 Court Enforcement of Arbitral Orders and Directions

7.12.1 Domestic Acts

7.12.2 Model Law

7.12.3 Enforcement of Preservation Orders and Awards

7.13 Appeals from Interim Preservation Orders

7.14 Court Assistance in Compelling Discovery from a Party

7.14.1 In the Jurisdiction of the Place of Arbitration

7.14.2 In a Jurisdiction Other Than the Place of Arbitration

7.15 Court Assistance In Taking Evidence

7.15.1 Domestic Acts

7.15.2 Model Law

7.16 Court Ordered Extension of Time Limits

7.16.1 Time Limits in the Agreement

7.16.2 Time Limits under the Applicable Law of the Contract

7.16.3 Time Limits under the Arbitration Acts

7.17 Court Ordered Consolidation

7.18 Court Involvement Following Delay or Default of a Party

7.19 Declaration of Invalidity of Arbitration

7.20 Removal of Arbitrator

7.20.1 Domestic Acts

7.20.2 Removal of Arbitrator under the Model Law

7.21 Court Review of Jurisdiction

7.21.1 Domestic Acts

7.21.2 Court Review of Jurisdiction under Model Law

7.21.3 Practice Note

7.22 Court Ordered Explanation of Award and Deliberative Secrecy

7.23 Appeals and Judicial Review of Awards

7.24 Residual Power of Involvement under The Domestic Acts

Chapter 8, The Award

8.1 Definition

8.2 Application of Law And Equity

8.2.1 The Award Must Be In Accordance With Law

8.2.2 In Accordance With The Terms Of The Contract And Usage Of The Trade

8.2.3 Ex Aequo Et Bono

8.3 Remedies

8.3.1 Adaption

8.3.2 Rectification

8.3.3 Punitive Damages

8.4 Interest

8.4.1 Domestic Acts

8.4.2 Model Law

8.5 Costs

8.6 Cost Consequences Of Offers To Settle

8.7 Assessment Of Costs

8.8 Practice Note On Costs

8.9 Decision Of The Tribunal

8.10 Form And Content Of The Award

8.11 Practice Note: Writing An Award

8.12 Counsel To The Tribunal

8.13 Denomination Of Award

8.14 Settlement

8.15 Place Of Award

8.16 Binding Nature Of Award

8.16.1 Binding As Between The Parties

8.16.2 Recognized By The Court: Res Judicata And Issue Estoppel

8.16.3 Effect On Third Parties

8.17 Explanation And Correction Of Errors And Deliberative Secrecy

8.17.1 Explanations

8.17.2 Correction Of Errors And Additional Awards

8.18 Practice Notes

8.19 Confidentiality

Chapter 9, Remedies Against Awards

9.1 Appeals

9.1.1 Appeals under the Model Law

9.1.2 Domestic Appeals

9.1.3 Time Limits For Appeals

9.1.4 Application For Leave To Appeal

9.1.5 Practice Notes

9.1.6 Appeal of the Decision Refusing Leave To Appeal

9.1.7 Appeals Without Leave

9.1.8 Appeal on Questions of Fact or Mixed Fact and Law

9.1.9 Appeal of Costs

9.1.10 Powers of the Court on Appeal

9.2 Enforcement of Award Pending Appeal

9.3 Appeal to the Court of Appeal

9.4 Practice Notes

9.5 Appeal of Interim Awards

9.6 Setting Aside an Award

9.6.1 Grounds for Setting Aside an Award

9.6.2 Waiver

9.6.3 Award under Model Law Conflicting with Public Policy

9.6.4 Practice Note

9.7 Omissions

9.8 Time Limit for Challenge

9.9 Extension of Limitation Periods

9.10 Stay Pending Application to Set Aside Award

Chapter 10, Recognition and Enforcement of Awards

10.1 Enforcement Under The Domestic Acts

10.1.1 Practice Note

10.1.2 Unusual Remedies

10.2 Enforcement Under The Model Law

10.2.1 Grounds For Refusing Recognition Or Enforcement

10.2.2 Public Policy

10.2.3 Practice Note

10.3 Waiver Or Estoppel

10.4 Stay Of Enforcement

10.5 Enforcement Notwithstanding Foreign Court Intervention

10.6 Practice Notes

10.7 Time Limits

APPENDICES

British Columbia

Commercial Arbitration Act, R.S.B.C 1996, c.55

International Commercial Arbitration Act, R.S.B.C. 1996, c. 233

Foreign Arbitral Awards Act, R.S.B.C. 1996, c.154

Ontario

Arbitration Act, 1991, S.O. 1991, c.17

International Commercial Arbitration Act, R.S.O. 1990, c.I.9

American Arbitration Association

American Arbitration Association International Dispute Resolution Procedures

ADR Chambers

Arbitration Rules

International Arbitration Rules

ADR Institute of Canada, Inc.

National Arbitration Rules

Mediation Rules

British Columbia International Commercial Arbitration Centre

International Commercial Arbitration Rules and Fee Schedule - January 1, 2000

Canadian Commercial Arbitration Centre

CCAC General Commercial Arbitration Rules and Model Clause

CCAC International Arbitration Rules and Model Clause

International Bar Association

IBA Guidelines on Conflicts of Interest in International Arbitration

IBA Rules on the Taking of Evidence in International Commercial Arbitration

International Chamber of Commerce

ICC Rules of Arbitration

LCIA

LCIA Arbitration Rules

LCIA Recommended Arbitration Clauses

LCIA Schedule of Arbitration Fees and Costs

UNCITRAL

UNCITRAL Model Law on International Commercial Arbitration (1985)

UNCITRAL Arbitration Rules