Written By Jeffrey S. Leon L.S.M., Gannon G. Beaulne & Cole R. Bricker
A new statutory regime governing international commercial arbitration came into effect in Ontario in March 2017, with the International Commercial Arbitration Act, 2017, SO 2017, c 2, replacing the International Commercial Arbitration Act, RSO 1990, I.9 The 2017 Act should interest practitioners and businesses alike. It clarifies and harmonizes Ontario’s statutory framework for international commercial arbitration, ensuring that Ontario continues to be an attractive and modern dispute resolution forum.
While the old Act merely endorsed the principles underlying the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), the 2017 Act outright adopts them. The New York Convention, which is appended as a schedule to the 2017 Act, addresses foreign arbitral awards or agreements in the context of “commercial legal relationships”. This resolves lingering uncertainty about the status of Ontario awards. Those attempting to uphold an arbitral award under the New York Convention can now apply to the Superior Court of Justice. The 2017 Act also resolves uncertainty about what limitation periods govern enforcement proceedings. The 2017 Act imposes a clear 10-year limitation period. These changes should create certainty for disputants with arbitral awards in hand who wish to access Ontario’s court system.
In addition, the 2017 Act alters the definition of arbitration agreement. As under the old Act, arbitration agreements must be in writing. But the 2017 Act provides that “an arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means”. The purpose of this change was to keep pace with modern ways of doing business. Emails may be considered a form of writing under the 2017 Act. This change to the definition of writing means a wider range of agreements should now be recognized.
The 2017 Act communicates that Ontario is committed to attracting international business and to staying current with changing business practices and the highest international standards.