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Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 47 appeal from a trial decision. When a right of appeal is imposed upon parties by statute, the result is not flexibility but inflexibility, extra cost, delay and a concatenation of disparate judicial views resulting in an outcome that only those judges pronouncing the final decision can be reliably assumed to think is correct. Parties who wish to choose arbitration but preserve rights of appeal can do so by providing an appeal process within the arbitration— an option that would preserve rather than defeat most of the other benefits of arbitration. OTHER CONSIDERATIONS • The International Example. Since the adoption of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1958, the adoption of the UNCITRAL Model Law in 1985 and the adoption of the Model Law in statutes across all Canadian jurisdictions in the 1990s, Canadian lawyers have developed considerable firsthand experience with a full range of commercial disputes being determined in arbitration, with complete finality and no right to appeal to any court on the merits. In addition, the federal Commercial Arbitration Act, which is based on the UNCITRAL Model Law, applies equally to both international and non-international arbitrations and provides no right of appeal. • The Reputation of the Courts. Even if one accepts that most judges are conscientious in carrying out the clear principles of law in favour of arbitration, a procedural and jurisprudential quagmire is created by the convoluted statutory provisions that are necessary in order to give effect to some right of appeal on the one hand while limiting it in some way through a leave process on the other. The resulting confusion does little to enhance the reputation of either litigation or arbitration as a form of dispute resolution. Arbitration appeals perpetuate an unhealthy notion that the courts and arbitrators are in competition with each other. There appears to be a strong temptation for some judges (no doubt a distinct minority) to demonstrate in any appeal process that arbitration is a subordinate form of dispute resolution and that a correct result cannot be reached until a “real judge” has put the matter right. Such decisions do not put the court in a favourable light. • Increased Complexity. Any attempt to limit the scope of the court decision that will be substituted for the award on any appeal is fraught with legal and behavioural complexity, as is amply demonstrated by the


Jan Advocate 2017
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