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CANADA COMMERCIAL ARBITRATION ACT
Canada Commercial Arbitration
Act
R.S., 1985, c. 17 (2nd Supp.)
An Act relating to commercial arbitration
|
[1986, c. 22, assented
to
17th June, 1986] |
|
SHORT
TITLE |
Short
title |
1. This Act may be cited as the Commercial Arbitration
Act. |
|
INTERPRETATION |
Definitions |
2. In this Act, |
"Code"
«Code» |
"Code"
means the Commercial Arbitration Code,
based on the model law adopted by the United Nations
Commission on International Trade Law on June
21, 1985, as set out in the schedule; |
"Crown
corporation" «société d'État» |
"Crown
corporation" means a Crown corporation as
defined in section 83 of the Financial Administration
Act;
"department" [Repealed,
R.S., 1985, c. 1 (4th Supp.), s. 8] |
"departmental
corporation" «établissement public» |
"departmental
corporation" means a departmental corporation
as defined in section 2 of the Financial Administration
Act.
R.S., 1985, c. 17 (2nd Supp.),
s. 2, c. 1 (4th Supp.), s. 8. |
Other
words and expressions |
3. Words and expressions used in this Act have the
meaning assigned to them by the Code. |
Ordinary
meaning |
4. (1) This Act shall be interpreted in good faith
in accordance with the ordinary meaning to be
given to its terms in their context and in the
light of its object and purpose. |
Recourse
to certain documents |
(2)
In interpreting the Code, recourse may be had
to
(a) the Report of the
United Nations Commission on International Trade
Law on the work of its eighteenth session, held
from June 3 to 21, 1985; and
(b) the Analytical Commentary
contained in the Report of the Secretary General
to the eighteenth session of the United Nations
Commission on International Trade Law. |
|
APPLICATION |
Law
in force |
5. (1) Subject to this section, the Code has the
force of law in Canada. |
Limitation
to certain federal activities |
(2)
The Code applies only in relation to matters where
at least one of the parties to the arbitration
is Her Majesty in right of Canada, a departmental
corporation or a Crown corporation or in relation
to maritime or admiralty matters. |
When
applicable |
(3)
The Code applies to arbitral awards and arbitration
agreements whether made before or after the coming
into force of this Act. |
Meaning
of "commercial arbitration" |
(4)
For greater certainty, the expression "commercial
arbitration" in Article 1(1) of the Code
includes
(a) a claim under Article
1116 or 1117 of the Agreement, as defined in subsection
2(1) of the North American Free Trade Agreement
Implementation Act; and
(b) a claim under Article
G-17 or G-18 of the Agreement, as defined in subsection
2(1) of the Canada-Chile Free Trade Agreement
Implementation Act.
R.S., 1985, c. 17 (2nd Supp.),
s. 5, c. 1 (4th Supp.), s. 9; 1993, c. 44, s.
50; 1997, c. 14, s. 32. |
|
COURTS |
Definition
of "court" or "competent court" |
6. In the Code, "court" or "competent
court" means the Federal Court or any superior,
county or district court, except where the context
otherwise requires. |
|
PUBLICATION |
Publication |
7. The Minister of Justice shall cause to be published
in the Canada Gazette the documents referred
to in paragraphs 4(2)(a) and (b)
forthwith on the coming into force of this Act. |
|
REGULATIONS |
Terms
and conditions for arbitration agreements |
8. The Governor in Council, on the recommendation
of the Minister of Justice, may make regulations
prescribing the terms and conditions on which
Her Majesty in right of Canada, a departmental
corporation or a Crown corporation may enter into
an arbitration agreement.
R.S., 1985, c. 17 (2nd Supp.),
s. 8, c. 1 (4th Supp.), s. 10. |
General |
9. The Minister of Justice may make such regulations
as are necessary for the purpose of carrying out
this Act or for giving effect to any of the provisions
thereof. |
|
HER
MAJESTY IS BOUND |
Binding
on Her Majesty |
10. This Act is binding on Her Majesty in right of
Canada. |
|
COMING
INTO FORCE |
Coming
into force |
*11. This Act shall come into force on a day to be
fixed by proclamation.
*[Note: Act in force August 10,
1986, see SI/86-155.] |
|
SCHEDULE
(Section 2) |
|
COMMERCIAL
ARBITRATION CODE
(Based on the Model Law
on International Commercial Arbitration as adopted
by the United Nations Commission on International
Trade Law
on June 21, 1985)
Note: The word "international",
which appears in paragraph (1) of article 1 of
the Model Law, has been deleted from paragraph
(1) of article 1 below. Paragraphs (3) and (4)
of article 1, which contain a description of when
arbitration is international, are deleted. Paragraph
(5) appears as paragraph (3).
Any additions or substitutions
to the Model Law are indicated by the use of italics.
Except as otherwise indicated,
the material that follows reproduces exactly the
Model Law. |
|
CHAPTER
I. GENERAL PROVISIONS |
|
Article
1
Scope of Application
(1) This Code applies to
commercial arbitration, subject to any agreement
in force between Canada and any other State
or States.
(2) The provisions of this Code,
except articles 8, 9, 35 and 36, apply only if
the place of arbitration is in Canada.
(3) This Code shall not
affect any other law of Parliament by virtue
of which certain disputes may not be submitted
to arbitration or may be submitted to arbitration
only according to provisions other than those
of this Code. |
|
Article
2
Definitions and Rules of Interpretation
For the purposes of this Code:
(a) "arbitration"
means any arbitration whether or not administered
by a permanent arbitral institution;
(b) "arbitral tribunal"
means a sole arbitrator or a panel of arbitrators;
(c) "court"
means a body or organ of the judicial system of
a State;
(d) where a provision
of this Code, except article 28, leaves
the parties free to determine a certain issue,
such freedom includes the right of the parties
to authorize a third party, including an institution,
to make that determination;
(e) where a provision
of this Code refers to the fact that the
parties have agreed or that they may agree or
in any other way refers to an agreement of the
parties, such agreement includes any arbitration
rules referred to in that agreement;
(f) where a provision
of this Code, other than in articles 25(a)
and 32(2)(a), refers to a claim, it also
applies to a counter-claim, and where it refers
to a defence, it also applies to a defence to
such counter-claim. |
|
Article
3
Receipt of Written Communications
(1) Unless otherwise agreed by
the parties:
(a) any written communication
is deemed to have been received if it is delivered
to the addressee personally or if it is delivered
at his place of business, habitual residence or
mailing address; if none of these can be found
after making a reasonable inquiry, a written communication
is deemed to have been received if it is sent
to the addressee's last-known place of business,
habitual residence or mailing address by registered
letter or any other means which provides a record
of the attempt to deliver it;
(b) the communication
is deemed to have been received on the day it
is so delivered.
(2) The provisions of this article
do not apply to communications in court proceedings. |
|
Article
4
Waiver of Right to Object
A party who knows that any provision
of this Code from which the parties may
derogate or any requirement under the arbitration
agreement has not been complied with and yet proceeds
with the arbitration without stating his objection
to such non-compliance without undue delay or,
if a time-limit is provided therefor, within such
period of time, shall be deemed to have waived
his right to object. |
|
Article
5
Extent of Court Intervention
In matters governed by this Code,
no court shall intervene except where so provided
in this Code. |
|
Article
6
Court or Other Authority for
Certain Functions of Arbitration Assistance and
Supervision
The functions referred to in articles
11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall
be performed by the Federal Court or any superior,
county or district court. |
|
CHAPTER
II. ARBITRATION AGREEMENT |
|
Article
7
Definition and Form of Arbitration
Agreement
(1) "Arbitration agreement"
is an agreement by the parties to submit to arbitration
all or certain disputes which have arisen or which
may arise between them in respect of a defined
legal relationship, whether contractual or not.
An arbitration agreement may be in the form of
an arbitration clause in a contract or in the
form of a separate agreement.
(2) The arbitration agreement
shall be in writing. An agreement is in writing
if it is contained in a document signed by the
parties or in an exchange of letters, telex, telegrams
or other means of telecommunication which provide
a record of the agreement, or in an exchange of
statements of claim and defence in which the existence
of an agreement is alleged by one party and not
denied by another. The reference in a contract
to a document containing an arbitration clause
constitutes an arbitration agreement provided
that the contract is in writing and the reference
is such as to make that clause part of the contract. |
|
Article
8
Arbitration Agreement and Substantive
Claim before Court
(1) A court before which an action
is brought in a matter which is the subject of
an arbitration agreement shall, if a party so
requests not later than when submitting his first
statement on the substance of the dispute, refer
the parties to arbitration unless it finds that
the agreement is null and void, inoperative or
incapable of being performed.
(2) Where an action referred to
in paragraph (1) of this article has been brought,
arbitral proceedings may nevertheless be commenced
or continued, and an award may be made, while
the issue is pending before the court. |
|
Article
9
Arbitration Agreement and Interim
Measures by Court
It is not incompatible with an
arbitration agreement for a party to request,
before or during arbitral proceedings, from a
court an interim measure of protection and for
a court to grant such measure. |
|
CHAPTER
III. COMPOSITION OF ARBITRAL TRIBUNAL |
|
Article
10
Number of Arbitrators
(1) The parties are free to determine
the number of arbitrators.
(2) Failing such determination,
the number of arbitrators shall be three. |
|
Article
11
Appointment of Arbitrators
(1) No person shall be precluded
by reason of his nationality from acting as an
arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree
on a procedure of appointing the arbitrator or
arbitrators, subject to the provisions of paragraphs
(4) and (5) of this article.
(3) Failing such agreement,
(a) in an arbitration
with three arbitrators, each party shall appoint
one arbitrator, and the two arbitrators thus appointed
shall appoint the third arbitrator; if a party
fails to appoint the arbitrator within thirty
days of receipt of a request to do so from the
other party, or if the two arbitrators fail to
agree on the third arbitrator within thirty days
of their appointment, the appointment shall be
made, upon request of a party, by the court or
other authority specified in article 6;
(b) in an arbitration
with a sole arbitrator, if the parties are unable
to agree on the arbitrator, he shall be appointed,
upon request of a party, by the court or other
authority specified in article 6.
(4) Where, under an appointment
procedure agreed upon by the parties,
(a) a party fails to act
as required under such procedure, or
(b) the parties, or two
arbitrators, are unable to reach an agreement
expected of them under such procedure, or
(c) a third party, including
an institution, fails to perform any function
entrusted to it under such procedure,
any party may request the
court or other authority specified in article
6 to take the necessary measure, unless the agreement
on the appointment procedure provides other means
for securing the appointment.
(5) A decision on a matter entrusted
by paragraph (3) or (4) of this article to the
court or other authority specified in article
6 shall be subject to no appeal. The court or
other authority, in appointing an arbitrator,
shall have due regard to any qualifications required
of the arbitrator by the agreement of the parties
and to such considerations as are likely to secure
the appointment of an independent and impartial
arbitrator and, in the case of a sole or third
arbitrator, shall take into account as well the
advisability of appointing an arbitrator of a
nationality other than those of the parties. |
|
Article
12
Grounds for Challenge
(1) When a person is approached
in connection with his possible appointment as
an arbitrator, he shall disclose any circumstances
likely to give rise to justifiable doubts as to
his impartiality or independence. An arbitrator,
from the time of his appointment and throughout
the arbitral proceedings, shall without delay
disclose any such circumstances to the parties
unless they have already been informed of them
by him.
(2) An arbitrator may be challenged
only if circumstances exist that give rise to
justifiable doubts as to his impartiality or independence,
or if he does not possess qualifications agreed
to by the parties. A party may challenge an arbitrator
appointed by him, or in whose appointment he has
participated, only for reasons of which he becomes
aware after the appointment has been made. |
|
Article
13
Challenge Procedure
(1) The parties are free to agree
on a procedure for challenging an arbitrator,
subject to the provisions of paragraph (3) of
this article.
(2) Failing such agreement, a
party who intends to challenge an arbitrator shall,
within fifteen days after becoming aware of the
constitution of the arbitral tribunal or after
becoming aware of any circumstances referred to
in article 12(2), send a written statement of
the reasons for the challenge to the arbitral
tribunal. Unless the challenged arbitrator withdraws
from his office or the other party agrees to the
challenge, the arbitral tribunal shall decide
on the challenge.
(3) If a challenge under any procedure
agreed upon by the parties or under the procedure
of paragraph (2) of this article is not successful,
the challenging party may request, within thirty
days after having received notice of the decision
rejecting the challenge, the court or other authority
specified in article 6 to decide on the challenge,
which decision shall be subject to no appeal;
while such a request is pending, the arbitral
tribunal, including the challenged arbitrator,
may continue the arbitral proceedings and make
an award. |
|
Article
14
Failure or Impossibility to
Act
(1) If an arbitrator becomes de
jure or de facto unable to perform
his functions or for other reasons fails to act
without undue delay, his mandate terminates if
he withdraws from his office or if the parties
agree on the termination. Otherwise, if a controversy
remains concerning any of these grounds, any party
may request the court or other authority specified
in article 6 to decide on the termination of the
mandate, which decision shall be subject to no
appeal.
(2) If, under this article or
article 13(2), an arbitrator withdraws from his
office or a party agrees to the termination of
the mandate of an arbitrator, this does not imply
acceptance of the validity of any ground referred
to in this article or article 12(2). |
|
Article
15
Appointment of Substitute Arbitrator
Where the mandate of an arbitrator
terminates under article 13 or 14 or because of
his withdrawal from office for any other reason
or because of the revocation of his mandate by
agreement of the parties or in any other case
of termination of his mandate, a substitute arbitrator
shall be appointed according to the rules that
were applicable to the appointment of the arbitrator
being replaced. |
|
CHAPTER
IV. JURISDICTION OF ARBITRAL TRIBUNAL |
|
Article
16
Competence of Arbitral Tribunal
to Rule on its Jurisdiction
(1) The arbitral tribunal may
rule on its own jurisdiction, including any objections
with respect to the existence or validity of the
arbitration agreement. For that purpose, an arbitration
clause which forms part of a contract shall be
treated as an agreement independent of the other
terms of the contract. A decision by the arbitral
tribunal that the contract is null and void shall
not entail ipso jure the invalidity of
the arbitration clause.
(2) A plea that the arbitral tribunal
does not have jurisdiction shall be raised not
later than the submission of the statement of
defence. A party is not precluded from raising
such a plea by the fact that he has appointed,
or participated in the appointment of, an arbitrator.
A plea that the arbitral tribunal is exceeding
the scope of its authority shall be raised as
soon as the matter alleged to be beyond the scope
of its authority is raised during the arbitral
proceedings. The arbitral tribunal may, in either
case, admit a later plea if it considers the delay
justified.
(3) The arbitral tribunal may
rule on a plea referred to in paragraph (2) of
this article either as a preliminary question
or in an award on the merits. If the arbitral
tribunal rules as a preliminary question that
it has jurisdiction, any party may request, within
thirty days after having received notice of that
ruling, the court specified in article 6 to decide
the matter, which decision shall be subject to
no appeal; while such a request is pending, the
arbitral tribunal may continue the arbitral proceedings
and make an award. |
|
Article
17
Power of Arbitral Tribunal to
Order Interim Measures
Unless otherwise agreed by the
parties, the arbitral tribunal may, at the request
of a party, order any party to take such interim
measure of protection as the arbitral tribunal
may consider necessary in respect of the subject-matter
of the dispute. The arbitral tribunal may require
any party to provide appropriate security in connection
with such measure. |
|
CHAPTER
V. CONDUCT OF ARBITRAL PROCEEDINGS |
|
Article
18
Equal Treatment of Parties
The parties shall be treated with
equality and each party shall be given a full
opportunity of presenting his case. |
|
Article
19
Determination of Rules of Procedure
(1) Subject to the provisions
of this Code, the parties are free to agree
on the procedure to be followed by the arbitral
tribunal in conducting the proceedings.
(2) Failing such agreement, the
arbitral tribunal may, subject to the provisions
of this Code, conduct the arbitration in
such manner as it considers appropriate. The power
conferred upon the arbitral tribunal includes
the power to determine the admissibility, relevance,
materiality and weight of any evidence. |
|
Article
20
Place of Arbitration
(1) The parties are free to agree
on the place of arbitration. Failing such agreement,
the place of arbitration shall be determined by
the arbitral tribunal having regard to the circumstances
of the case, including the convenience of the
parties.
(2) Notwithstanding the provisions
of paragraph (1) of this article, the arbitral
tribunal may, unless otherwise agreed by the parties,
meet at any place it considers appropriate for
consultation among its members, for hearing witnesses,
experts or the parties, or for inspection of goods,
other property or documents. |
|
Article
21
Commencement of Arbitral Proceedings
Unless otherwise agreed by the
parties, the arbitral proceedings in respect of
a particular dispute commence on the date on which
a request for that dispute to be referred to arbitration
is received by the respondent. |
|
Article
22
Language
(1) The parties are free to agree
on the language or languages to be used in the
arbitral proceedings. Failing such agreement,
the arbitral tribunal shall determine the language
or languages to be used in the proceedings. This
agreement or determination, unless otherwise specified
therein, shall apply to any written statement
by a party, any hearing and any award, decision
or other communication by the arbitral tribunal.
(2) The arbitral tribunal may
order that any documentary evidence shall be accompanied
by a translation into the language or languages
agreed upon by the parties or determined by the
arbitral tribunal. |
|
Article
23
Statements of Claim and Defence
(1) Within the period of time
agreed by the parties or determined by the arbitral
tribunal, the claimant shall state the facts supporting
his claim, the points at issue and the relief
or remedy sought, and the respondent shall state
his defence in respect of these particulars, unless
the parties have otherwise agreed as to the required
elements of such statements. The parties may submit
with their statements all documents they consider
to be relevant or may add a reference to the documents
or other evidence they will submit.
(2) Unless otherwise agreed by
the parties, either party may amend or supplement
his claim or defence during the course of the
arbitral proceedings, unless the arbitral tribunal
considers it inappropriate to allow such amendment
having regard to the delay in making it. |
|
Article
24
Hearings and Written Proceedings
(1) Subject to any contrary agreement
by the parties, the arbitral tribunal shall decide
whether to hold oral hearings for the presentation
of evidence or for oral argument, or whether the
proceedings shall be conducted on the basis of
documents and other materials. However, unless
the parties have agreed that no hearings shall
be held, the arbitral tribunal shall hold such
hearings at an appropriate stage of the proceedings,
if so requested by a party.
(2) The parties shall be given
sufficient advance notice of any hearing and of
any meeting of the arbitral tribunal for the purposes
of inspection of goods, other property or documents.
(3) All statements, documents
or other information supplied to the arbitral
tribunal by one party shall be communicated to
the other party. Also any expert report or evidentiary
document on which the arbitral tribunal may rely
in making its decision shall be communicated to
the parties. |
|
Article
25
Default of a Party
Unless otherwise agreed by the
parties, if, without showing sufficient cause,
(a) the claimant fails
to communicate his statement of claim in accordance
with article 23(1), the arbitral tribunal shall
terminate the proceedings;
(b) the respondent fails
to communicate his statement of defence in accordance
with article 23(1), the arbitral tribunal shall
continue the proceedings without treating such
failure in itself as an admission of the claimant's
allegations;
(c) any party fails to
appear at a hearing or to produce documentary
evidence, the arbitral tribunal may continue the
proceedings and make the award on the evidence
before it. |
|
Article
26
Expert Appointed by Arbitral
Tribunal
(1) Unless otherwise agreed by
the parties, the arbitral tribunal
(a) may appoint one or
more experts to report to it on specific issues
to be determined by the arbitral tribunal;
(b) may require a party
to give the expert any relevant information or
to produce, or to provide access to, any relevant
documents, goods or other property for his inspection.
(2) Unless otherwise agreed by
the parties, if a party so requests or if the
arbitral tribunal considers it necessary, the
expert shall, after delivery of his written or
oral report, participate in a hearing where the
parties have the opportunity to put questions
to him and to present expert witnesses in order
to testify on the points at issue. |
|
Article
27
Court Assistance in Taking Evidence
The arbitral tribunal or a party
with the approval of the arbitral tribunal may
request from a competent court of Canada assistance in taking evidence. The court may execute
the request within its competence and according
to its rules on taking evidence. |
|
CHAPTER
VI. MAKING OF AWARD AND TERMINATION OF PROCEEDINGS |
|
Article
28
Rules Applicable to Substance
of Dispute
(1) The arbitral tribunal shall
decide the dispute in accordance with such rules
of law as are chosen by the parties as applicable
to the substance of the dispute. Any designation
of the law or legal system of a given State shall
be construed, unless otherwise expressed, as directly
referring to the substantive law of that State
and not to its conflict of laws rules.
(2) Failing any designation by
the parties, the arbitral tribunal shall apply
the law determined by the conflict of laws rules
which it considers applicable.
(3) The arbitral tribunal shall
decide ex aequo et bono or as amiable
compositeur only if the parties have expressly
authorized it to do so.
(4) In all cases, the arbitral
tribunal shall decide in accordance with the terms
of the contract and shall take into account the
usages of the trade applicable to the transaction. |
|
Article
29
Decision-making by Panel of
Arbitrators
In arbitral proceedings with more
than one arbitrator, any decision of the arbitral
tribunal shall be made, unless otherwise agreed
by the parties, by a majority of all its members.
However, questions of procedure may be decided
by a presiding arbitrator, if so authorized by
the parties or all members of the arbitral tribunal. |
|
Article
30
Settlement
(1) If, during arbitral proceedings,
the parties settle the dispute, the arbitral tribunal
shall terminate the proceedings and, if requested
by the parties and not objected to by the arbitral
tribunal, record the settlement in the form of
an arbitral award on agreed terms.
(2) An award on agreed terms shall
be made in accordance with the provisions of article
31 and shall state that it is an award. Such an
award has the same status and effect as any other
award on the merits of the case. |
|
Article
31
Form and Contents of Award
(1) The award shall be made in
writing and shall be signed by the arbitrator
or arbitrators. In arbitral proceedings with more
than one arbitrator, the signature of the majority
of all members of the arbitral tribunal shall
suffice, provided that the reason for any omitted
signature is stated.
(2) The award shall state the
reasons upon which it is based, unless the parties
have agreed that no reasons are to be given or
the award is an award on agreed terms under article
30.
(3) The award shall state its
date and the place of arbitration as determined
in accordance with article 20(1). The award shall
be deemed to have been made at that place.
(4) After the award is made, a
copy signed by the arbitrators in accordance with
paragraph (1) of this article shall be delivered
to each party. |
|
Article
32
Termination of Proceedings
(1) The arbitral proceedings are
terminated by the final award or by an order of
the arbitral tribunal in accordance with paragraph
(2) of this article.
(2) The arbitral tribunal shall
issue an order for the termination of the arbitral
proceedings when:
(a) the claimant withdraws
his claim, unless the respondent objects thereto
and the arbitral tribunal recognizes a legitimate
interest on his part in obtaining a final settlement
of the dispute;
(b) the parties agree
on the termination of the proceedings;
(c) the arbitral tribunal
finds that the continuation of the proceedings
has for any other reason become unnecessary or
impossible.
(3) The mandate of the arbitral
tribunal terminates with the termination of the
arbitral proceedings, subject to the provisions
of articles 33 and 34(4). |
|
Article
33
Correction and Interpretation
of Award; Additional Award
(1) Within thirty days of receipt
of the award, unless another period of time has
been agreed upon by the parties:
(a) a party, with notice
to the other party, may request the arbitral tribunal
to correct in the award any errors in computation,
any clerical or typographical errors or any errors
of similar nature;
(b) if so agreed by the
parties, a party, with notice to the other party,
may request the arbitral tribunal to give an interpretation
of a specific point or part of the award.
If the arbitral tribunal
considers the request to be justified, it shall
make the correction or give the interpretation
within thirty days of receipt of the request.
The interpretation shall form part of the award.
(2) The arbitral tribunal may
correct any error of the type referred to in paragraph
(1)(a) of this article on its own initiative
within thirty days of the date of the award.
(3) Unless otherwise agreed by
the parties, a party, with notice to the other
party, may request, within thirty days of receipt
of the award, the arbitral tribunal to make an
additional award as to claims presented in the
arbitral proceedings but omitted from the award.
If the arbitral tribunal considers the request
to be justified, it shall make the additional
award within sixty days.
(4) The arbitral tribunal may
extend, if necessary, the period of time within
which it shall make a correction, interpretation
or an additional award under paragraph (1) or
(3) of this article.
(5) The provisions of article
31 shall apply to a correction or interpretation
of the award or to an additional award. |
|
CHAPTER
VII. RECOURSE AGAINST AWARD |
|
Article
34
Application for Setting Aside
as Exclusive Recourse against Arbitral Award
(1) Recourse to a court against
an arbitral award may be made only by an application
for setting aside in accordance with paragraphs
(2) and (3) of this article.
(2) An arbitral award may be set
aside by the court specified in article 6 only
if:
(a) the party making the
application furnishes proof that:
(i) a party to the arbitration
agreement referred to in article 7 was under some
incapacity; or the said agreement is not valid
under the law to which the parties have subjected
it or, failing any indication thereon, under the
law of Canada; or
(ii) the party making the
application was not given proper notice of the
appointment of an arbitrator or of the arbitral
proceedings or was otherwise unable to present
his case; or
(iii) the award deals with
a dispute not contemplated by or not falling within
the terms of the submission to arbitration, or
contains decisions on matters beyond the scope
of the submission to arbitration, provided that,
if the decisions on matters submitted to arbitration
can be separated from those not so submitted,
only that part of the award which contains decisions
on matters not submitted to arbitration may be
set aside; or
(iv) the composition of the
arbitral tribunal or the arbitral procedure was
not in accordance with the agreement of the parties,
unless such agreement was in conflict with a provision
of this Code from which the parties cannot
derogate, or, failing such agreement, was not
in accordance with this Code; or
(b) the court finds that:
(i) the subject-matter of
the dispute is not capable of settlement by arbitration
under the law of Canada; or
(ii) the award is in conflict
with the public policy of Canada.
(3) An application for setting
aside may not be made after three months have
elapsed from the date on which the party making
that application had received the award or, if
a request had been made under article 33, from
the date on which that request had been disposed
of by the arbitral tribunal.
(4) The court, when asked to set
aside an award, may, where appropriate and so
requested by a party, suspend the setting aside
proceedings for a period of time determined by
it in order to give the arbitral tribunal an opportunity
to resume the arbitral proceedings or to take
such other action as in the arbitral tribunal's
opinion will eliminate the grounds for setting
aside. |
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CHAPTER
VIII. RECOGNITION AND ENFORCEMENT OF AWARDS |
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Article
35
Recognition and Enforcement
(1) An arbitral award, irrespective
of the country in which it was made, shall be
recognized as binding and, upon application in
writing to the competent court, shall be enforced
subject to the provisions of this article and
of article 36.
(2) The party relying on an award
or applying for its enforcement shall supply the
duly authenticated original award or a duly certified
copy thereof, and the original arbitration agreement
referred to in article 7 or a duly certified copy
thereof. If the award or agreement is not made
in an official language of Canada, the
party shall supply a duly certified translation
thereof into such language. |
|
Article
36
Grounds for Refusing Recognition
or Enforcement
(1) Recognition or enforcement
of an arbitral award, irrespective of the country
in which it was made, may be refused only:
(a) at the request of
the party against whom it is invoked, if that
party furnishes to the competent court where recognition
or enforcement is sought proof that:
(i) a party to the arbitration
agreement referred to in article 7 was under some
incapacity; or the said agreement is not valid
under the law to which the parties have subjected
it or, failing any indication thereon, under the
law of the country where the award was made; or
(ii) the party against whom
the award is invoked was not given proper notice
of the appointment of an arbitrator or of the
arbitral proceedings or was otherwise unable to
present his case; or
(iii) the award deals with
a dispute not contemplated by or not falling within
the terms of the submission to arbitration, or
it contains decisions on matters beyond the scope
of the submission to arbitration, provided that,
if the decisions on matters submitted to arbitration
can be separated from those not so submitted,
that part of the award which contains decisions
on matters submitted to arbitration may be recognized
and enforced; or
(iv) the composition of the
arbitral tribunal or the arbitral procedure was
not in accordance with the agreement of the parties
or, failing such agreement, was not in accordance
with the law of the country where the arbitration
took place; or
(v) the award has not yet
become binding on the parties or has been set
aside or suspended by a court of the country in
which, or under the law of which, that award was
made; or
(b) if the court finds
that:
(i) the subject-matter of
the dispute is not capable of settlement by arbitration
under the law of Canada; or
(ii) the recognition or enforcement
of the award would be contrary to the public policy
of Canada.
(2) If an application for setting
aside or suspension of an award has been made
to a court referred to in paragraph (1)(a)(v)
of this article, the court where recognition or
enforcement is sought may, if it considers it
proper, adjourn its decision and may also, on
the application of the party claiming recognition
or enforcement of the award, order the other party
to provide appropriate security. |
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