Any consideration of arbitral jurisdiction in Canada must proceed within the governing legislative framework. Legislation in each Canadian province and territory, as well as federal legislation, directs how and when the parties may seek the assistance of local courts on matters of arbitral jurisdiction in both domestic and international arbitrations. The legislation governing domestic arbitrations is similar in each jurisdiction. Each province and territory has also adopted legislation for international commercial arbitrations that incorporates the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985 (the Model Law). The federal government has incorporated the Model Law, with some slight modifications, for all domestic and international arbitrations under federal jurisdiction. Broad adherence to the Model Law provides a significant degree of predictability to parties arbitrating disputes in Canada.
As arbitration becomes an increasingly popular means of resolving commercial disputes, Canadian Courts are often called upon to adjudicate issues of arbitral jurisdiction. This chapter will begin by providing a brief overview of the historical Canadian approach to arbitral jurisdiction, followed by a discussion of several recent court decisions from across the country that address specific aspects of arbitral jurisdiction in a commercial arbitration context. The current state of Canadian law in this respect is commented upon in the conclusion.
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