Looking Out and Looking In:Reconciling Domestic and Internationalist Considerations in the Enforcement and Review of Arbitration Awards in Canada

Abstract

IN MANY ways, Canada is in a favourable position within the international commercial arbitration community, given its bijuridical, bilingual, and multicultural heritage. In addition, Canada is generally a favourable jurisdiction with respect to the enforcement of arbitral awards, recognising the necessity of according deference to arbitral awards and respecting the intentions of the parties who agreed to resolve any disputes by way of arbitration in the first place. The question of enforcement in Canada is not entirely free from complication, however. Occasionally courts struggle with how to reconcile the express instructions of the UNCITRAL Model Law on International Commercial Arbitration (‘Model Law’) with principles of Canadian law which might otherwise apply in the domestic context. Such concerns become acute in the question of the review of arbitral awards, the enforcement of such awards, and identifying the limitation periods, if any, which apply to the enforcement of an award. These tensions came to a head in the recent Supreme Court of Canada decision of Yugraneft Corp . v. Rexx Management Corp . (‘ Yugraneft ’),1 which addressed the question of what limitation period, if any, would apply to the enforcement of an international commercial arbitral award in Canada. The Court concluded that the limitation period for the granting of a remedial order, namely, two years, applied to the enforcement of an international commercial arbitral award. In so doing, the Court attempted to adopt an internationalist perspective with respect to the Model Law, while at the same time adopting a robust interpretation of Alberta's limitation regime. ### (a) Canadian Courts are Faithful to Deference Mandated by Model Law Canadian law is consistent in holding that the reasons to review an award pursuant to Article 34 of the Model Law and to refuse enforcement of an award under Article 36 of the Model Law are to be narrowly construed.2 One Canadian decision has …