Foreign, International, & Commercial Arbitration
Internationally, arbitrations are either domestic or non-domestic, commercial or non-commercial.
Foreign and international
The New York Convention applies to arbitration awards and agreements that are non-domestic under the enforcement state’s laws. The New York Convention, in its Article I, defines these awards as “foreign”. The New York Convention uses “foreign” as a synonym for “non-domestic”.
The UNCITRAL Model Law applies to commercial arbitration awards that are international. The Model Law, in its Article 1(3), defines the term “international”. The Model Law uses “international” as a synonym for “non-domestic”.
The New York Convention allows state-parties to restrict the Convention’s scope to “commercial” awards only.
Each Canadian jurisdiction, with the exception of Quebec, made use of the New York Convention’s commercial reservation. The provinces did so by declaring that the New York Convention applies only to differences arising out of legal relationships, whether contractual or not, which Canadian law treats as commercial. Parliament formally took the commercial reservation.
Of the 14 Canadian jurisdictions that have adopted the Model law, only British Columbia includes a definition for the term commercial in its statute. This definition follows the commercial footnote included in the Model Law, with some minor textual differences.
Quebec does not restrict its legislation to international commercial arbitration. Article 2639 of Quebec’s civil code simply restricts the following disputes from submission to arbitration: disputes over the status and capacity of persons, family matters or other matters of public order.
The federal Commercial Arbitration Act in its section 5 makes clear that the expression “commercial arbitration” includes:
(a) a claim under Article 1116 or 1117 of the Agreement, as defined in subsection 2(1) of the North American Free Trade Agreement Implementation Act;
(b) a claim under Article G-17 or G-18 of the Agreement, as defined in subsection 2(1) of the Canada-Chile Free Trade Agreement Implementation Act;
(c) a claim under Article 819 or 820 of the Agreement, as defined in section 2 of the Canada–Peru Free Trade Agreement Implementation Act;
(d) a claim under Article 819 or 820 of the Agreement, as defined in section 2 of the Canada–Colombia Free Trade Agreement Implementation Act; and
(e) a claim under a provision, set out in column 1 of Schedule 2, of an agreement that is set out in column 2.