As part of our quarterly series on current trends across different industries, our second article for 2019 explores cross-practice litigation developments in Canada, outlining the impact on business and the potential ramifications of recent court decisions and regulatory changes.
Increase in Arbitration
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.
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