Monday, November 18, 2013

Alberta Law Reform Institute Final Report on Arbitration Act: Stay and Appeal Issues

The Alberta Law Reform Institute (ALRI) recently published its Final Report 103 - Arbitration Act: Stay and Appeal Issues:
"A modern Arbitration Act became law in Alberta in 1991. In the two decades since, certain issues have arisen in Alberta case law which affect the ideal functioning of the arbitration system ... The Final Report contains ALRI’s recommendations for reform, which are outlined in this Summary."

"ALRI reaffirms the two fundamental principles underlying the Alberta Act: the principle of party control and the principle of restricted court intervention. ALRI relied on these principles when formulating final recommendations in order to maintain conceptual consistency within the Alberta Act."

"The first issue concerns partial stays of competing court proceedings under section 7(5). Partial stays work well when arbitrable and litigable issues are reasonably separable, which is a prerequisite to the operation of section 7(5). But what should a court do when they cannot be reasonably separated or the competing litigation involves additional parties who are not subject to the arbitration agreement or both? (...)"
"Alberta courts have produced some strikingly divergent lines of case law on issues which essentially concern how accessible arbitral appeals should be. The policy basis of appeals under section 44 of the Alberta Act seems to be unclear, ambiguous or even contradictory. The legislation provides appeal routes and yet undermines them at the same time. ALRI has therefore rethought the role of arbitral appeals in a more fundamental way and proposes a new balance between the competing policy considerations. ALRI recommends that arbitration parties should continue to be able, by agreement, to appeal an arbitral award to the Court of Queen’s Bench on whatever basis the parties decide. This promotes the principle of party control over the arbitral process. Consultation feedback also favoured retaining such consensual appeals. However, ALRI proposes that this should be the only appeal route. ALRI recommends repealing non-consensual appeals on a question of law by leave of the court. Nova Scotia and Quebec similarly do not provide such an appeal route. Strengthening the principle of restricted court intervention in the Alberta Act also enhances the principle of party control. Although consultation feedback was more mixed on this issue, a slight edge of respondents advocated repealing these appeals as well..."

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posted by Michel-Adrien at 5:48 pm


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