Challenging jurisdiction and anti-suit provisions in Canada
Produced in partnership with George Karayannides of Clyde & Co Canada LLP
Challenging jurisdiction and anti-suit provisions in Canada

The following Arbitration guidance note Produced in partnership with George Karayannides of Clyde & Co Canada LLP provides comprehensive and up to date legal information covering:

  • Challenging jurisdiction and anti-suit provisions in Canada
  • The framework for international arbitration in Canada
  • Challenging the jurisdiction of an arbitrator
  • Anti-suit injunctions
  • Timing
  • Procedure for obtaining an anti-suit injunction

The framework for international arbitration in Canada

Canada has adopted the 1985 United Nations Commission on International Trade Law (UNCITRAL) Model Law (the Model Law). Because Canada is a federation, a different international arbitration statute applies at the federal level and in each province and territory. These statutes either include the Model Law, for example, the Ontario International Commercial Arbitration Act (ICAA) (RSO 1990, c. I.9.), includes the Model Law as a schedule, or import its principles. Federally, Canada has not yet adopted the 2006 revisions to the Model Law. Provincially, Ontario and British Columbia are currently the only provinces to have done so as respectively seen in the International Commercial Arbitration Act 2017, SO 2017, Chapter 2, at Schedule 2 (the International Commercial Arbitration Act 2017) and the International Commercial Arbitration Act, RSBC 1996, c 233.

Challenging the jurisdiction of an arbitrator

In Canada, provincial, territorial, and federal international arbitration legislation preserves arbitral jurisdiction and protects it from inappropriate judicial intervention. This legislation gives effect to the principles of the Model Law by setting out the limited circumstances in which a court may intervene in arbitral proceedings.

Courts generally interpret these provisions narrowly in deference to the arbitral agreement and arbitrators acting within their jurisdiction. For example, the Ontario Court of Appeal has held there is a