There is a continuing trend in both domestic and international contractual disputes for those disputes to be resolved by way of arbitration. While the disputes going to arbitration and transactions with arbitration provisions have been associated with infrastructure, mining and energy industries, more and more parties are choosing arbitration rather than court, particularly where the parties are from different countries, including in the financial services, fintech, life sciences and construction industries.
The provincial acts that govern arbitrations seated in Canada have seen recent updates, most notably the international acts in Ontario and British Columbia. Both acts now adopt the most recent UNCITRAL Model Law provisions, including new provisions related to interim measures, third-party funding and confidentiality. The arbitration institutions active in Canada, such as the International Chamber of Commerce, International Centre for Dispute Resolution Canada and the British Columbia International Commercial Arbitration Centre have all focused on developing rules and procedures to increase the efficiency of arbitration. At the same time, there has been a noticeable uptick in the number of arbitrations seated in Canadian centres like Vancouver, Calgary, Toronto and Montréal.
For foreign investors in Canada and Canadian investors abroad, the changing landscape of international investment arbitration is also something to monitor. On December 30, 2018, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which contains an investment protection chapter with investor-state arbitration provisions, entered into force among the first six countries to ratify the agreement, including Canada.
The Comprehensive Economic and Trade Agreement between Canada and the European Union (CETA), which provisionally entered into force on September 21, 2017, also contains an investment protection chapter with dispute resolution provisions, although that chapter is not yet in force because it requires ratification by all EU member states.
In April 2019, the EU Court of Justice opined that the mechanism for investor-state dispute resolution set out in CETA is compatible with EU law, paving the way for ratification. CETA contemplates a unique "investment court" mechanism rather than submission of disputes to ad hoc tribunals, which would change the investor-state arbitration model.
Finally, the new Canada-United States-Mexico Agreement (CUSMA, or NAFTA 2.0) was signed on November 30, 2018, but has not yet been ratified by the three member states. Once in force, the investment chapter in CUSMA will do away with investor-state arbitration altogether in the case of investors from, or in Canada, subject to a three-year phase-out period for "legacy" investments under current NAFTA Chapter 11. Mexican and U.S. investors will continue to have recourse to some investorstate arbitration under CUSMA, and Mexican and Canadian investors will have recourse to CPTPP. The Canadian ratification process for CUSMA began in June 2019, and on June 20, 2019, Bill C-100, An Act to implement the Agreement between Canada, the United States of America and the United Mexican States received second reading in the House of Commons and was referred to the Standing Committee on International Trade.
On a procedural level, the International Centre for Settlement of Investment Disputes (ICSID) arbitration rules are undergoing a comprehensive review, with an amendment process underway intended to modernize the rules, make ICSID arbitration more time- and cost-effective, and make the process less paper-intensive with greater use of technology for transmission of documents, which will be a welcome development for claimant investors and respondent states alike.
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