Arbitration In Canada - Commencing an Arbitration

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Prior to commencing an arbitration, consideration must be given to what rules are to apply. The Rules used in court proceedings have no application. If an institution has been specified in the arbitration agreement, then those rules apply. If there is no institution then the arbitration is ad hoc and you look to the rules applicable to arbitrations at the place of arbitration. If the arbitration is to take place in Canada then, absent an agreement between the parties, the applicable provincial domestic Act or Model Law will apply. If the place of arbitration is outside Canada, then notwithstanding the substantive law of the contract may be Canadian law, the procedural rules for commencing and conducting the arbitration will be the law of the place of arbitration unless some other procedural rules have been agreed to.

Neither the Model Law nor the provincial domestic Acts set out a form for the notice or demand for arbitration, but it is good practice to follow either the UNCITRAL Rules or the rules of one of the arbitration institutions so that it cannot be said improper or incomplete notice was given. Under the UNCITRAL arbitration rules, the notice of arbitration is to include the following:

  • 1.A demand that the dispute be referred to arbitration;
  • 2.The names and addresses of the parties;
  • 3.A reference to the arbitration clause or the separate arbitration agreement that is invoked;
  • 4.A reference to the contract out of or in relation to which the dispute arises;
  • 5.The general nature of the claim and an indication of the amount involved,
  • 6.The relief or remedy sought; and
  • 7.If necessary, a proposal as to the number of arbitrators if the parties have not previously agreed.
  • In addition, the notice of arbitration may also include:

  • 1.The proposals for the appointment of a sole arbitrator;
  • 2.The notification of the appointment of an arbitrator if it is a three person panel
  • 3.A copy of the statement of claim
  • Note that the “statement of claim” is not the same as is filed in court. It is a completely different document setting out all of the evidence, law and argument of the Claimant. Unless the matter is very simple, it is better to await the direction of the Arbitral Tribunal before delivering the Claimant’s Statement

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