In the last year, in several significant decisions, the Ontario and British Columbia courts have addressed the standard of review for jurisdiction decisions under the UNCITRAL Model Law that forms part of both Ontario and British Columbia’s international commercial arbitration legislation. These cases provide important guidance on the scope of judicial intervention into arbitral rulings on jurisdiction and the interplay between the different avenues of review set out in Articles 16(3) and 34(2)(a) of the Model Law, particularly given that this issue is one that courts have “neatly sidestepped in the past”.
Under recent case law, correctness remains the standard of review for a set aside proceeding under Article 34(2)(a) of the Model Law, while a de novo hearing on jurisdiction is available under Article 16(3). There remains some confusion as to the difference between the differences (if any) between these two standards of review and whether both articles can be relied upon at the same time in seeking court review of a jurisdiction decision.
The Model Law
The Model Law is incorporated into Ontario’s International Commercial Arbitration Act, 2017 and British Columbia’s International Commercial Arbitration Act. The Model Law limits judicial intervention in arbitral decisions. For example, it does not provide for an appeal of an arbitral award on its merits.
Instead, under Article 34(2)(a) of the Model Law, a set aside proceeding may be brought on the basis that the tribunal did not have jurisdiction, and under Article 16(3), where a tribunal rules as a preliminary question that it has jurisdiction, any party may apply to an appropriate court “to decide the matter”. Section 11 of the Ontario ICAA also allows a party to apply to the court “to decide the matter” where a tribunal finds that it has no jurisdiction. It is in this context that the appropriate standard of review is relevant.