Canadian Acceptance of International Commercial Arbitration

A few years ago it would have been impossible to speak of Canadian "acceptance" of international commercial arbitration. Canada had not adhered to any international convention on arbitration, and Canadian legislation did not specifically regulate arbitration in commercial dealings or when it involved some non-national element. There was no federal enactment on the subject. Canadian provincial legislation, whether the civil law of Quebec or the common law of the rest of Canada, had not greatly evolved from the 19th century position expressed in legislation based upon the legal traditions of France and the United Kingdom of the same period. No more than a handful of judicial decisions had been rendered in Canadian courts involving the enforcement of foreign arbitral awards. There was little doctrinal writing on the topic. Institutional structures designed to assist in the implementation of arbitration agreements were no more than local organizations whose primary concern was domestic arbitration within local communities or specialized trade associations. Canada has recently gone through a remarkable transformation on all of these fronts. Since 1986 its position has evolved to the point where it is, indeed, appropriate to speak of a Canadian acceptance of international commercial arbitration. There have been dramatic developments in the legislative ordering of arbitration. New institutional facilities have been set up to accommodate the specific needs of those implicated in the organization of international arbitrations involving commercial interests. The topic, moreover, is one now claiming the fresh attention of members of the Canadian legal community. All of these developments are of interest to those generally concerned with the evolution of Canada's international trade law. They may also be of particular interest to those who are exploring the legal implications for the private sector of the bilateral free trade agreement between Canada and the United States. While the renewal of the Canadian position on international commercial arbitration has not been directly linked to the movement in promotion of free trade, it is only natural to enquire whether these developments in the law of arbitration may assist in the resolution of disputes arising between the commercial interests in the private sector on both sides of the border that will receive new impetus if the Free Trade Agreement is implemented in both countries. This study will therefore summarize the new legislative framework that has been put in place in Canada with respect to international commercial arbitration (Part II) and draw attention to the existence of newly formed institutional facilities designed to accommodate the organization of international arbitrations (Part III). Some concluding reflections are devoted to the specific considerations that are prompted by the possibility of using arbitration as a mode of dispute resolution within the context of Canada-U.S. trade in the private sector (Part IV).

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