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Canadian Arbitration Blog

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Editors
Mark A. Gelowitz

Partner, Disputes, Toronto

Lauren Tomasich

Partner, Disputes, Toronto

Olivia Dixon

Partner, Disputes, Calgary

Geoffrey Hunnisett

Partner, Disputes, Toronto

Matthew M. Huys

Partner, Disputes, Calgary

Emily MacKinnon

Partner, Disputes, Vancouver

About

Osler’s Canadian Arbitration Blog is a resource curated by a team of practitioners across Canada for all matters related to arbitration in various industries including construction, international trade and commerce, energy and natural resources, and financial services. The Blog explores emerging trends, landmark cases, and significant developments in arbitration law both domestically and internationally. The Blog offers practical tips and best practices with respect to drafting arbitration agreements, instituting arbitration proceedings, and enforcing arbitral awards.

LAUREN : Hi, I’m Lauren Tomasich, a partner in the Osler litigation group in Toronto and one of the key contacts for Osler’s domestic and international arbitration practice.

You may think of arbitration as a way of resolving disputes out of court. This is true at a high level, but a much deeper understanding is necessary to use arbitration effectively.

With Osler’s Canadian Arbitration blog on Osler.com we explore the nuances of arbitration with timely articles published regularly.

Let me give you a few examples of unique arbitration issues.

The first involves the interplay between arbitration and the courts. Canadian courts have consistently upheld the important policy consideration of staying court proceedings where parties have agreed in their contract to arbitrate.

This means that if a party starts litigation when there is an arbitration clause, the court will stay the litigation in favour of arbitration.

Perhaps that sounds straightforward, but it gives rise to all sorts of interesting considerations. Does the court, or the arbitrator decide whether the arbitrator has jurisdiction to hear the dispute? What happens if there are multiple contracts and not all of them contain an arbitration clause? What happens if there are multiple disputes and not all are governed by the arbitration clause? What about third-parties that are not party to the arbitration clause? What if you need injunctive relief from the court?

We tackle the latest developments around these arbitration issues and others that the courts regularly grapple with.

The conduct of an arbitration is also an important issue.

An often touted advantage to arbitration is the ability to select a decision maker. But what if the arbitration clause does not prescribe how the arbitrator is to be appointed and the parties cannot agree? Our blog explores case law that considers relevant factors that courts will apply to select an arbitrator if there is no mechanism in the clause – which is of course, something to be avoided at the outset. Our blog also talks about the importance of drafting robust arbitration clauses.

The conduct of an arbitration and the rules used to govern the arbitration is also a significant consideration. We report on the developments with institutional arbitration rules around the world, such as the International Chamber of Commerce, or the London Court of International Arbitration.

The same goes for domestic arbitration rules. Canadian arbitral institutions have rules specific to arbitrations between Canadian parties. For example, the ADR Institute of Canada Arbitration Rules comprehensively address domestic arbitration procedure. We keep tabs on how Canadian domestic rules are keeping pace with international arbitration norms.

Finally, many arbitrations, particularly in the domestic context are “ad hoc” meaning they are not administered by an institution and the parties along with the arbitrator craft rules to suit the dispute at hand. Our blog offers strategies and tactics to navigate arbitration procedure.

So, why is all of this important? Arbitration continues to gain popularity in commercial agreements across of variety of industries, particularly given packed court dockets.

Arbitration also facilitates enforceability in other jurisdictions. An arbitral award may actually be easier to enforce in another jurisdiction than a Canadian court judgment. It is also important to be mindful of recognition and enforcement considerations in Canadian jurisdictions when advising foreign clients.

These are just a few examples of why parties must understand the law of arbitration and its unique processes and procedures.

Osler’s Arbitration Blog is your go-to resource for all things arbitration related.

Our team of practitioners across Canada provide practical insights and analysis into this dynamic area of law.

We demystify the technicalities and delve into the workings of arbitration law, explore emerging trends, landmark cases, and significant developments as well as provide practical tips, strategies, and best practices.

Whether you are a legal professional, government official, business executive, or simply curious about this increasingly popular field, we look forward to sharing the latest content with you.

Results

Latest Blog Posts

Blog Jun 10, 2024

No property, no investment: Koch Industries’ carbon allowances not an ‘asset’ under NAFTA

The International Centre for Settlement of Investment Disputes (ICSID) recently released its highly anticipated decision in Koch Industries,...

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No property, no investment: Koch Industries’ carbon allowances not an ‘asset’ under NAFTA
Blog May 8, 2024

Court confirms difficulty in overturning recognition and enforcement of arbitral award pursuant to UNCITRAL Model Law

Allegations surrounding arbitrator impartiality and independence are not likely to be entertained by Ontario courts if they have already been...

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Court confirms difficulty in overturning recognition and enforcement of arbitral award pursuant to UNCITRAL Model Law
Blog Mar 12, 2024

Just in: IBA updates 2024 Guidelines on Conflicts of Interest in International Arbitration

The International Bar Association has updated its Guidelines on Conflict of Interest in International Arbitration following broad consultation. Sonia...

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Just in: IBA updates 2024 Guidelines on Conflicts of Interest in International Arbitration
Blog Mar 11, 2024

Skip the arbitration: mandatory arbitration clause in standard-form contract found unconscionable

In Pokornik v. SkipTheDishes Restaurant Services Inc, the Manitoba Court of Appeal has held that the arbitration clause in a standard form...

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Skip the arbitration: mandatory arbitration clause in standard-form contract found unconscionable
Blog Feb 20, 2024

‘Lacuna matata’: should we worry about a gap in B.C.’s domestic arbitration scheme?

The British Columbia Court of Appeal has found a gap in the province’s arbitration system that affects dispute deficiencies and appeals.

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‘Lacuna matata’: should we worry about a gap in B.C.’s domestic arbitration scheme?
Blog Jan 11, 2024

No do-over for NAFTA arbitration: Ontario court refuses to set aside award for procedural unfairness or bias

A recent Ontario Superior Court decision affirms that the burden on a party asserting procedural unfairness is high.

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No do-over for NAFTA arbitration: Ontario court refuses to set aside award for procedural unfairness or bias
Blog Jan 2, 2024

Court refuses to enforce ‘all-but-inaccessible’ arbitration agreement for crypto trading platform

A recent Ontario Superior Court decision found an arbitration agreement embedded in a standard form “click” contract to be unconscionable...

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Court refuses to enforce ‘all-but-inaccessible’ arbitration agreement for crypto trading platform
Blog Nov 13, 2023

Alberta Court finds non-party bound to arbitrate when enforcing contractual warranties

A recent Alberta case found that beneficiaries of contractual warranties may be bound to arbitrate disputes arising from those contractual...

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Alberta Court finds non-party bound to arbitrate when enforcing contractual warranties
Blog Oct 26, 2023

British Columbia Court of Appeal rules that arbitration clauses in standard form contracts are presumptively enforceable in the province

Distinct from the Supreme Court of Canada’s 2020 decision in Uber Technologies v. Heller, a recent case suggests that British Columbia courts...

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British Columbia Court of Appeal rules that arbitration clauses in standard form contracts are presumptively enforceable in the province
Blog Oct 19, 2023

Federal Court determines criteria for Court to appoint arbitrator

For the first time, two parties asked the Federal Court to appoint an arbitrator under the federal Commercial Arbitration Act. Olivia Dixon,...

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Federal Court determines criteria for Court to appoint arbitrator