Latest Issue: Volume 4, Issue 1: October 2023
Pages: i - x
Author: Joshua Karton
Pages: xi - xii
This issue of CJCA contains our usual mix of updates, in-depth explorations, and features.
MAKING SENSE OF STANDARDS AND FORMATS OF REVIEW APPLICABLE TO THE JUDICIAL REVIEW OF AN ARBITRAL TRIBUNAL'S JURISDICTIONAL DECISIONS
Author: Laurent Crépeau
Pages: 1 - 54
Introduction: Central to the outcome of an arbitration are the arbitral tribunal’s jurisdictional decisions—what the tribunal rules that it can and cannot rule on. For this reason, parties may seek review of these decisions either at the pre- or post-award stages of the arbitration. Despite the ubiquity of such challenges, relatively limited attention has been given to the manner in which courts review jurisdictional decisions. However, upon an examination of case law from across the world, disparities in standards and formats of review adopted by courts become apparent. A standard of review determines the extent to which a court must defer to the conclusions of an arbitral tribunal, while a format of review encompasses the procedural rules that set out how a review is to be conducted. Standard and format of review significantly impact the way in which jurisdictional review is conducted. As such, it is important to understand the respective effects of each unit as well as be able to justify them theoretically. Hence, this paper offers a theory of jurisdictional review. After considering the variety of approaches to jurisdictional review adopted across jurisdictions as well as the general principles at play in the judicial supervision of an arbitration, it proposes flexible rules to guide the jurisdictional review process in the future.
Author: Hon. Barry Leon
Pages: 55 - 59
Introduction: At CanArbWeek in October 2023, CJCA Executive Editor Hon. Barry Leon was presented with the Distinguished Service Award of the Chartered Institute of Arbitrators (Canada Branch). Presenting the award, CJCA Executive Editor Janet Walker CM CD recounted Barry’s many years of achievement and service to the Canadian arbitration community. He was a Litigation Partner at Torys in Toronto for many years and later Head of the International Arbitration Group at Perley-Robertson, Hill & McDougall in Ottawa. Then he was the Presiding Judge in the Commercial Division of the Eastern Caribbean Supreme Court in the British Virgin Islands, and now is an independent arbitrator at Arbitration Place in Toronto, 33 Bedford Row Chambers in London, and Caribbean Arbitrators. He has been a most prolific leader of conferences, events, and other initiatives including from the 2006 International Law Association biennial conference held in Toronto, to ArbitralWomen and the Campaign for Greener Arbitration, to CanArbWeek, and as a co-founder and continuing ambassador for this journal. Janet also particularly lauded Barry for his dedication to mentorship and diversity over many years. Since long before diversity became a common topic of discussion, and against some resistance from within the profession, Barry has not only driven the conversation forward but advocated for concrete steps to provide better opportunities for new faces in the profession. In recognition of these efforts, in 2014 Barry was awarded the CPR International Institute for Conflict Prevention and Resolution’s Award for Outstanding Contribution to Diversity in ADR. For all these reasons, his professional achievements, his unflagging advocacy for Canadian arbitration, and his sincere and persistent allyship in support Canadian practitioners of all stripes, we are proud to recognize our Executive Editor, Hon. Barry Leon, for his receipt of the Chartered Institute of Arbitrators (Canada Branch) 2023 Distinguished Service Award. We reproduce here Barry’s remarks accepting the award, an opportunity he used—as always with Barry—not to promote not his own career, but rather to charge members of the Canadian arbitration community to renew and strengthen their commitment to the cause of Canadian arbitration itself.
Pages: 60 - 75
Introduction: In Aroma Franchise Company Inc. et al v Aroma Espresso Bar Canada Inc. et al, 2023 ONSC 1827 (“Aroma”), the Ontario Superior Court of Justice was asked to consider whether an arbitrator, after having been appointed as an arbitrator in one matter, must make a disclosure in that arbitration if they are subsequently appointed by the same counsel or firm in a second matter, and whether failure to disclose in such circumstances can be grounds for a reasonable apprehension of bias. The Court answered both questions in the affirmative.
Pages: 76 - 94
Introduction: The year 2023 was characterized by a dearth of cases that significantly advanced or changed arbitration law in Canada. Generally, the most noteworthy cases in 2023 represent extensions of trends that were reported in last year’s case law review.
Pages: 95 - 104
Introduction: This interview is one in a series of interviews undertaken as a joint project between Young Canadian Arbitration Practitioners, YCAP, and the Canadian Journal of Commercial Arbitration, CJCA, with leading members of the Canadian international arbitration community.