Background
The Uniform Law Conference of Canada Project


In 1986 the Uniform Law Conference of Canada developed the Uniform International Commercial Arbitration Act to serve as a template for the implementation of the United Nations Commission on International Trade Law (UNCITRAL) Model Law and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards by Canada's provincial, territorial and federal governments. The conference has now established a working group to bring forward recommendations to updatethe act in 2013. The aim of this initiative is to help maintain Canada's reputation as a leader in the field of international commercial arbitration.

Background

Canada was at the forefront in the implementation of the UNCITRAL Model Law on International Commercial Arbitration and remains a leader in the development of model law jurisprudence. As Canada is a federal state, the adoption of the model law required enactments at the provincial, territorial and federal level.

The initiative to implement harmonious, nationwide arbitration legislation was led by the Uniform Law Conference – founded in 1918 to harmonise the laws of Canada's provinces and territories and, where appropriate, federal laws. Conference delegates include government policy lawyers and analysts, private lawyers and law reformers.

An important part of the conference's remit is to draft and recommend the adoption of uniform statutes. In 1986 the conference prepared the Uniform International Commercial Arbitration Act, which dealt with two principal subjects:

  • the adoption of the UNCITRAL Model Law; and
  • the implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The act was subsequently implemented with relatively minor amendments in some cases through provincial legislation in all provinces and territories except British Columbia and Quebec. While British Columbia was an active participant in the work of the conference, it enacted its own forms of legislation on international commercial arbitration and foreign arbitral awards before the conference had completed its work. British Columbia's statutes are similar in substance to the Uniform International Commercial Arbitration Act. In Quebec the concepts set out in the act were incorporated into the Civil Code and the Code of Civil Procedure.

The widespread adoption of the International Commercial Arbitration supported the growth of international commercial arbitration in Canada. Many respected international arbitrators, academics and arbitration counsel are Canadian. A growing number of international arbitrations are seated in Canada. A group of home-grown Canadian arbitral institutions have emerged, including:

  • the Toronto Commercial Arbitration Society;
  • the Western Canada Commercial Arbitration Society;
  • the International Chamber of Commerce Canada;
  • the Alternative Dispute Resolution Institute of Canada; and
  • the Young Canadian Arbitration Practitioners organisation.

The British Columbia International Commercial Arbitration Centre, which was established in 1986 contemporaneously with the enactment of British Columbia's new international commercial arbitration legislation, languished for a time due to lack of financial support, but is currently experiencing a modest renaissance.

There have been significant changes in international arbitration law and practice since the Canadian legislative framework for international commercial arbitration was established. Canadian courts have interpreted and applied the text of the Uniform Act and its counterparts in British Columbia and Quebec. Other states have adopted new arbitration legislation. Foreign courts have applied and interpreted statutes based wholly or partly on the model law. The model law was amended by UNCITRAL in 2006.

The Uniform Law Conference of Canada Project

In 2010 an ad hoc group of representatives of Canadian arbitral institutions concluded that it was vital for Canada and its provinces to review and update their laws relating to international commercial arbitration. In early 2011 the group persuaded the conference to establish a formal Uniform Law Conference of Canada Project to begin the process. Gerald W Ghikas QC, who had led the private initiative, was appointed to chair the project. A small but representative core working group was appointed to assume primary responsibility for steering the project and formulate recommendations. An advisory board comprised of experienced and creative practitioners, academics and institutional leaders from across Canada was assembled.

The working group will present its interim policy recommendations at the next annual meeting of the conference in August 2012 in Whitehorse, Yukon. If the recommendations are approved, the working group will turn to the task of drafting a new Uniform International Commercial Arbitration Act, while continuing the broad consultation and consensus building that has already occurred. It is hoped that new legislation will be available for adoption by the conference and enactment by governments by August 2013.

For further information on this topic please contact Gerald W Ghikas or Angus M Gunn Jr at Borden Ladner Gervais LLP by telephone (+1 604 687 5744), fax (+1 604 687 1415) or email ([email protected] or [email protected]).