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Jan Advocate 2017

40 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE The previous uniform Act allowed parties to appeal to a court of first instance on questions of law, with leave of that court, or without leave if the arbitration agreement expressly authorized such appeals or all parties consent. The previous uniform Act also permitted parties to appeal to a court of first instance on questions of fact or mixed questions of law and fact, without leave, if such appeals are authorized by the arbitration agreement. A party could not appeal to the court, however, on a question of law “which the parties expressly referred to the arbitral tribunal for decision.” The decision of the court of first instance could then be further appealed to the court of appeal, with leave of that court. These comments by the working group must be understood in the context that most provinces did not adopt the previous UAA in the precise combination of recommendations it contained. For example, as noted above, Alberta does not allow any opting out of appeals (with leave) on points of law and Alberta is the only province to adopt the exception relating to questions of law “which the parties expressly referred to the arbitral tribunal”. The commentary attached to the appeal-related provisions of the new UAA continues as follows: There is a broad consensus that appeals on questions of fact or mixed fact and law should not be allowed. Section 65 (subject to a transitional provision) prohibits appeals on questions of fact or on questions of mixed fact and law, even if the parties have agreed to allow such appeals. Among the members of the ULCC Working Group and survey respondents more than half supported also barring appeals on questions of law. There was also substantial support for preserving such a right of appeal. If such appeal rights are to be available, the preponderant view was that it should be on an “opt-in” rather than an “opt out” basis. Subsection 65(1) of the new Act assumes that appeals on questions of law will be permitted, on an “opt-in” basis. Because this is a significant change from the previous regime in many jurisdictions, a transitional provision is recommended (see Section 74) to preserve the previous regime for arbitration agreements made before the new Act is enacted. The new Act implements a more streamlined appeal process, to the Court of Appeal (with leave of that court) rather than to a court of first instance. This should reduce unduly protracted post-award litigation. ARBITRATION AWARDS AND COURT APPEALS: WHAT IS THE PROBLEM? Any discussion of appeals to the court from arbitration awards raises fundamental questions as to the nature and purpose of arbitration. It also raises questions about how arbitration relates to the power/responsibility of state courts to adjudicate disputes between private parties. By implication, it raises questions as well as to the role, responsibility and interests of the legal profession with respect to all forms of dispute resolution. These questions are as old as the idea of arbitration itself.


Jan Advocate 2017
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