I haven’t done a book report since elementary school, but I feel compelled to share with those who have not already discovered it, the newly-launched Canadian Journal of Commercial Arbitration (CJCA), published Its Managing Editor, Professor Joshua Karton, promises that the journal “seeks to bridge the gap between practice and academia”.
By Queen’s Law in association with Juris Publishing. It is the first Canadian journal devoted to this subject. Its inaugural issue can be found at https://cjca.queenslaw.ca/issues and is available to be downloaded for free. Its Managing Editor, Professor Joshua Karton, promises that the journal “seeks to bridge the gap between practice and academia”.
The papers in the inaugural issue fulfill that promise. They focus on the theme, “Canada within the world of international arbitration” and they are excellent papers written by well-known leaders, both academics and arbitrators, in commercial arbitration in Canada.
- “Canada’s Place in the World of International Arbitration”, by Professor Janet Walker, C.Arb. This paper charts the growing influence of Canadian arbitrators, counsel, and arbitral organizations and institutions in international arbitration. That Canadian courts support arbitration, that there are world-class facilities for hearings, and that Canadian counsel and arbitrators are well-regarded internationally make it a desirable seat for arbitrations. However, the challenge remains to establish a sufficient foundation in the field of international arbitration to encourage parties around the world to look regularly to Canada as a seat. The benefits, once realized, will be to attract more international commercial activity and support our economy. This is an inspiring call to arms written by someone who has long been on the vanguard of promoting arbitration in Canada.
- “Competence-Competence in Canada: A Barometer of Court Support for Commercial Arbitration”, by Joel Richler, FCIArb. The principle of competence-competence empowers arbitral tribunals to determine at first instance their own jurisdiction. Canada has expressly adopted the principle in international commercial arbitration legislation as a matter of public policy and it is supported by the courts, led by the Supreme Court of Canada, which defer to arbitral tribunals, subject only to residual court discretion in limited circumstances. an experienced, well-respected arbitrator, this thoughtful paper explains very effectively the proper application of competence-competence. It reviews relevant cases in which this principle has arisen and concludes that Canadian courts have struck the appropriate balance between arbitral and court power, particularly since the Supreme Court of Canada’s landmark decisions in Dell Computer Corp. v Union des consommateurs, 2007 SCC 34, Seidel v TELUS Communications Inc., 2011 SCC 15, and, most recently, TELUS Communications Inc. v Wellman, 2019 SCC 19.
- “Setting Aside: Excess of Jurisdiction or Error of Law? – A Second Kick at the Can”, by J. Brian Casey, FCIArb. Commercial parties increasingly tout the benefits of arbitration, including finality – until they lose. However, with appeal rights either non-existent (under Ontario’s international Act) or limited to a question of law, with leave (under Ontario’s domestic Act), disappointed parties can only look to the other statutory remedy available, which is an application to set aside the award due to specified procedural irregularities. This does not involve a merits or correctness review. This paper, written by one of the leading Canadian authorities on commercial arbitration, discusses two areas where a set aside application sometimes blurs into a review of the merits of the award: where it is alleged that the award deals with a dispute that is not covered by the arbitration agreement; and where courts import common law concepts of judicial review. The Ontario Court of Appeal got it right (for the most part) in Alectra Utilities Corporation v Solar Power Network Inc., 2019 ONCA 254. The paper concludes with the comment that in a private, consensual arbitration, there should be no room for setting aside an award based on the personal view of an appellate judge that it was not reasonable. (See also the interesting analysis of Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 and Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 in this context, which were the subject of one of my recent blogs.)
- “Removing an Arbitrator for Incapacity or Undue Delay”, by Douglas F. Harrison, FCIArb. This paper, written by a senior commercial arbitrator and mediator, is a practical and thorough analysis of the procedure, law, and various arbitral institution rules that are relevant to a delicate issue that is rarely discussed – the grounds for removing an arbitrator or terminating her/his mandate as a result of the inability to perform the necessary functions (by reason of incapacity or legal impediment) or undue delay in releasing the award – and the consequences that flow, to the parties and to the arbitrator, from removing an arbitrator. (For example, it has been argued that, “arbitrators who physically attack their colleagues and make violent threats against them show a fundamental, irremediable incapacity and unfitness to function as arbitrators”!) The author provides a caution: parties who seek termination of an arbitrator’s mandate must be careful what they wish for, given the wide scope for the exercise of the tribunal’s discretion in many cases, along with the powers reserved for courts and arbitral institutions, and the possible risks of compromising the ultimate award.
- Two case comments, which are required reading for anyone with an interest in the highly-anticipated Supreme Court of Canada decision in Uber Technologies Inc. v Heller, 2020 SCC 16:
- “Like a Poor Marksman, ONCA Keeps Missing the Arbitration Target: Discussing Disney v. Reinsurance, Heller v Uber and Hulan v Marty, by Professor Anthony Daimsis, an academic with expertise in arbitration, who was also counsel in the Heller v Uber case. The case comment, “calls out the struggles of the Court of Appeal for Ontario… with foundational principles like seat theory, competence-competence, and uniformity in applying legal instruments on international arbitration”, thereby risking exposing Ontario as an undesirable arbitral seat.
- “American Echoes in TELUS v Wellman; Discussing TELUS v Wellman and Heller v Uber, by Assistant Professor Alyssa King. The case comment discusses the policy issues that arise in these cases. The author pre-sages the outcome in the Supreme Court of Canada decision in the Heller v Uber case, by suggesting an approach that would address the policy issues by using an unconscionability analysis to determine whether the arbitration clause at issue is enforceable.
You can also access an excellent discussion hosted by the CJCA and moderated by Managing Editor Professor Joshua Karton called “Uber Technologies v Heller: First Impressions” (recorded July 3, 2020) on the blog portion of CJCA website at https://cjca.queenslaw.ca/news/cjca-hosts-webinar-uber-v-heller-first-impressions . Roundtable speakers are: Professor Kevin Banks, The Honourable Thomas Cromwell, Pierre Bienvenu, William G. Horton, Tina Cicchetti, Professor Janet Walker, and Professor Anthony Daimsis.
I urge anyone with an interest in domestic and/or international commercial arbitration in Canada to read this issue!