Consensual Arbitration in Quebec
By Frédéric Bachand
Introduction
From a constitutional standpoint, consensual arbitration falls primarily within the legislative jurisdiction of the Quebec National Assembly: the relevant legislative provisions are found in the Civil Code of Quebec and in the Code of Civil Procedure. However, the federal Parliament can regulate arbitration in connection with disputes that relate to matters falling within its legislative jurisdiction. Two federal statutes regulate consensual arbitration. The Commercial Arbitration Act applies in maritime matters, or where the dispute involves the federal Crown or one of its organs. The United Nations Foreign Arbitral Awards Convention Act applies when the matter of the dispute falls within the legislative jurisdiction of the federal Parliament.
One of the objectives of the relevant federal statutes and provincial provisions is to ensure the compatibility of domestic rules with the UNCITRAL Model Law on International Commercial Arbitration and the Convention for the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention). The federal statutes repeat, almost word for word, the Model law and the New York Convention. In Quebec, the Legislator has chosen to incorporate the substance, rather than the wording, of these international instruments in legislative provisions that are more in line with the civil law tradition. The National Assembly, however, made it very clear that these provisions constituted an accurate reflection ("le reflet fidèle") of the Model Law (Québec, Assemblée nationale, Journal des débats (30 octobre 1986) à la p. 3674). Thus, it is important to always interpret the Quebec provisions relating to consensual arbitration in accordance with the relevant transnational sources.
Transnational Sources
1. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)
a) Text of the Convention [.pdf]
Spanish, Chinese, Russian and Arabic versions of the Convention can be found on the UNCITRAL website.
b) Travaux préparatoires (UNCITRAL website)
c) Vienna Convention on the Law of Treaties [.pdf] (1980), art. 31-33 relating to the interpretation of treaties
2. UNCITRAL Model Law on International Commercial Arbitration (1985)
a) Text of the Model Law [.pdf]
Spanish, Chinese, Russian and Arabic versions of the Model Law can be found on the UNCITRAL website.
b) Travaux préparatoires
i) Analytic commentary on draft text of a Model Law on International Commercial Arbitration [.pdf]
iii) Other documents (UNCITRAL website)
iv) Explanatory Note by the UNCITRAL Secretariat [.pdf]
v) Case Law on the Model Law (UNCITRAL website)
Domestic Sources
1. Instrument of ratification by Canada of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards
2. Provincial Statutes and Regulations
a) Relevant provisions of the Civil Code of Quebec [.pdf]
b) Relevant provisions of the Consumer Protection Act [.pdf]
c) Relevant provisions of the Code of Civil Procedure of Quebec [.pdf]
3. Federal Statutes
a) Commercial Arbitration Act [.pdf]
b) United Nations Foreign Arbitral Awards Convention Act [.pdf]
Reform of Quebec Arbitration Law
1. Provincial Statute
a) Relevant provisions of the Draft Bill to enact the new Code of Civil Procedure [.pdf]
b) Relevant provisions of Bill 28 - An Act to establish the new Code of Civil Procedure [.pdf]
2. Briefs presented to the Committee on Institutions of the National Assembly of Quebec on the Draft Bill to enact the new Code of Civil Procedure
a) Brief of the Institut de médiation et d'arbitrage du Québec
b) Brief of the Canadian Bar Association -- Quebec Division
c) Brief of the Barreau du Québec
2. Brief presented to the Committee on Institutions of the National Assembly of Quebec on Bill 28, An Act to establish the new Code of Civil Procedure
a) Brief of the Institut de médiation et d'arbitrage du Québec
© Frédéric Bachand