Sean Frankland
Sean is a litigator with experience advocating for clients in a range of commercial and insurance matters, including complex coverage matters, contractual disputes, professional negligence, and product liability. Sean has a keen interest in international arbitration.
4 Contributions by Sean Frankland
PRACTICE NOTES
Canada: International arbitration - challenging jurisdiction and stays, Model Law Article 8, competence-competence, and post-Uber scrutiny of standard-form consumer clauses
The framework for international arbitration in Canada
Canada has implemented the 1985 United Nations Commission on International Trade Law (UNCITRAL) Model Law (the Model Law). As a federation, Canada allocates international arbitration legislation to both the federal order and each province and territory. Those statutes either reproduce the Model Law—for instance, Ontario’s International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (the ‘International Commercial Arbitration Act 2017’) appends the Model Law as a Schedule—or adopt its core tenets. Federally, Canada has not yet enacted the 2006 amendments to the Model Law. At the provincial level, Ontario and British Columbia are currently the only provinces to have incorporated those revisions, seen respectively in Schedule 2 to the International Commercial Arbitration Act 2017 and the International Commercial Arbitration Act, RSBC 1996, c 233.
Challenging the jurisdiction of an arbitrator
In Canada, international arbitration statutes at the provincial, territorial, and federal levels safeguard arbitral competence and shield it from unwarranted judicial interference. This legislative scheme gives effect to the Model Law by prescribing the narrow circumstances in which a court may intervene in arbitral proceedings...
Arbitration
PRACTICE NOTES
Canada’s State Immunity Act and Arbitration: Waiver, Commercial Activity, and Recognition and Enforcement of Awards
State immunity
This Practice Note explores how state immunity operates within Canadian arbitration. For a broader introduction to state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. Further materials covering multiple jurisdictions worldwide, including England and Wales, are available under our ‘State immunity’ subtopic: State immunity and arbitration—overview.
State immunity functions as an organising norm among independent states. It preserves fidelity to the twin principles of sovereignty and equality within the international order. Sovereignty secures a state’s power to regulate persons and events on its territory without undue external interference. Equality embodies the idea that no state ranks above another internationally. These principles are reflected in the doctrine of state immunity (Kazemi Estate v Islamic Republic of Iran). The pragmatic realities of international relations in an imperfect world also support the doctrine: because domestic judgments against foreign states are, in practice, almost impossible to enforce, domestic courts are not well placed to adjudicate such claims in the first instance. As the Supreme Court of Canada observed, ‘it is counterproductive for a court to review the decisions...
Arbitration
PRACTICE NOTES
Interim relief in Canadian international arbitration: tribunal and court measures, enforcement and third-party considerations under the UNCITRAL Model Law (including 2006 amendments)
The framework for international arbitration in Canada
Canada applies the 1985 United Nations Commission on International Trade Law (UNCITRAL) Model Law (the Model Law). Given Canada’s federal structure, distinct international arbitration statutes operate at the federal tier and within each province and territory. Those enactments either reproduce the Model Law—Ontario’s International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (the ‘International Commercial Arbitration Act 2017’) attaches it as a Schedule—or adopt its principles. Federally, Canada has not implemented the 2006 amendments to the Model Law. Provincially, only Ontario and British Columbia have adopted them, as reflected respectively in Schedule 2 to the International Commercial Arbitration Act 2017 and in the International Commercial Arbitration Act, RSBC 1996, c 233.
Interim measures from arbitral tribunals
Article 17 of the Model Law provides that, unless the parties stipulate otherwise, an arbitral tribunal may grant whatever interim protective measures it considers necessary, and may require appropriate security in relation to that measure. All Canadian jurisdictions have implemented article 17 in their international arbitration legislation, save for Quebec. Under Quebec’s Code of Civil Procedure, with matters concerning interim measures dealt with under that code in lieu of article 17 accordingly for Quebec alone...
Arbitration
PRACTICE NOTES
Recognition, Enforcement, Grounds for Refusal, Setting Aside and Limitation Periods for International Arbitral Awards in Canada
The framework for international arbitration in Canada
Canada operates as a federation made up of ten provinces and three territories. All provinces and territories follow the common law, apart from Quebec, which is a civil law jurisdiction. Federally, and across every common law province and territory, there is specific legislation that governs international commercial arbitration:
United Nations Foreign Arbitral Awards Convention Act, RSC 1985, c 16 (2nd Supp)
Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp)
Alberta: International Commercial Arbitration Act, RSA 2000, c I-5
British Columbia:
International Commercial Arbitration Act, RSBC 1996, c 233
Foreign Arbitral Awards Act, RSBC 1996, c 154
Manitoba: International Commercial Arbitration Act, CCSM c C151
New Brunswick: International Commercial Arbitration Act, RSNB 2011, c 176
Newfoundland and Labrador: International Commercial Arbitration Act, RSNL 1990, c I-15
Northwest: International Arbitration Act, RSNWT 1988, c I-6
Nova Scotia: International Commercial Arbitration Act, RSNC 1989, c 234
Nunavut: International Commercial Arbitration Act, RSNWT (Nu) 1988, c I-6, as amended
Ontario: International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5
Prince Edward Island: International Commercial Arbitration Act, RSPEI 1988, c I-5...
Arbitration
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