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Jan Advocate 2017

80 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE VOL. 75 PART 1 JANUARY 2017 In domestic (non-international) arbitrations in British Columbia there is no finality. There is a statutory, limited right of appeal. It is not by accident that we have it. In 1986, B.C. enacted international and domestic arbitration statutes. The international statute was and is based on the UNCITRAL Model Law, with no right of appeal. Stakeholders at the time would not accept that in the domestic regime. If arbitrators got the law of British Columbia wrong, parties wanted the ability to have it corrected by a judge. How do arbitrators feel about that? No one likes to be told they were in error, but often when sitting as an international arbitrator I felt quite alone in a regime where the reigning culture is finality. (I recognize there are confirmation and setting aside processes even in the international arbitration context.) Even in the international regime the existence of an appellate layer is not without precedent. The International Center for Settlement of Investment Disputes (“ICSID”) has a review regime. I recall that my decision in a very large, controversial petroleum project arbitration was met with the call for an appellate regime. (The award was upheld on a court challenge, but I would not have been uncomfortable with an appeal.) As an appellate judge, I sometimes took comfort in the existence of the Supreme Court of Canada. With a tough law problem an appellate judge can make what he or she considers the correct decision with the knowledge that there is a possibility for it to be considered afresh. On a number of occasions, I rather hoped that parties would seek leave to appeal. (On other occasions I was miffed that they did and even more miffed that they got leave—such is life.) All of this said, I recognize that there are those who would like to abolish the limited right of appeal in domestic arbitrations see William Horton’s article beginning on page 37 of this issue on related points. It is a debate that is not over. The statutory right of appeal in B.C.’s domestic arbitration statute, which is limited to errors of law, has created some problems. It often is used by those who simply do not trust the arbitral process. It merely is an extra layer in the battle. Before the Court of Appeal decision in Hayes Forest Services Ltd. v. Weyerhaeuser Co.,2 leave to appeal was granted almost as a matter of course if an error in the interpretation of a contract was alleged. The conventional mantra was that the construction of a contract is always a question of law. Hayes did away with that and in 2014, Sattva Capital Corp. v. Creston Moly Corp.,3 in the Supreme Court of Canada confirmed this. In Sattva, while adopting the approach articulated in Hayes that the construction of a contract is not always a pure question of law, the Supreme Court of Canada stated that it will be rare that there will be a pure question


Jan Advocate 2017
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