A quick reference guide to arbitration procedures in the USA, England, Bermuda and Canada

 

USA

England

Bermuda

Canada

Statute

 Federal Arbitration Act of 1925

 The Arbitration Act 1996

 The Bermuda International Conciliation and Arbitration Act 1993 (incorporating the UNCITRAL Model Law)

Commercial Arbitration Act,1985 (based on the UNCITRAL Model Law)  in addition, nine of the ten provinces and all three of the territories have enacted statutes based on the Model Law

Are Anti-Suit Injunctions Available?

Yes, although typically arbitration agreements are enforced by an application to dismiss the court proceeding

 

Yes, these are routinely granted to restrain court proceedings brought in breach of an arbitration clause

 Yes, these are routinely granted to restrain court proceedings brought in breach of an arbitration clause

Yes, although Canadian courts will generally expect that a stay or other termination first be sought and denied in the foreign court proceeding

Can Arbitrators Rule on Jurisdiction?

Generally no, unless parties have agreed or if adopted rules permit

 Yes, as a preliminary matter although there is an opportunity for further review by the supervising court

 Yes, as a preliminary matter although there is an opportunity for further review by the supervising court

 Yes, as a preliminary matter or in a final award, although there is an opportunity for reconsideration by the supervising court

Must Arbitrators Be Independent/Neutral/Impartial?

 Yes unless agreed otherwise. Certain arbitration rules may permit non-neutral  party- appointed arbitrators

Yes

 Yes

 Yes

What Is Procedure for Challenging/Removing Arbitrator?

General view is that courts lack jurisdiction to consider interlocutory challenges

 An interlocutory application can be made to the court to remove an arbitrator, including for lack of impartiality or on basis of insufficient qualifications

 Challenging party must file written challenge with the panel within 15 days. If challenge is rejected, an application to court for review can be made

 Generally speaking, challenges are to be made to the arbitral panel and, if unsuccessful at first instance, then to the supervising court

Indemnification/Immunity of Arbitrators?

 Generally yes but “hold harmless” agreements common

 Yes

 Yes

 Yes

Are Ex Parte Communications with Arbitrators Permitted?

 Yes, if expressly agreed – in some cases ex parte communications with party-appointees continue through to final hearing

 No, unless purely administrative or – if parties agree – solely to discuss selection of third arbitrator / chair. Discussion of merits is prohibited. 

 No, unless purely administrative or – if parties agree – solely to discuss selection of third arbitrator / chair. Discussion of merits is prohibited. 

Any ex parte communication which gives rise to a reasonable apprehension of bias will be sufficient ground for the courts to set aside an award and/or stay ongoing arbitral proceedings

Are “Honourable Engagement” Clauses Enforceable?

 Yes

 Yes

 Yes

  Likely yes

Are Arbitrations Confidential?

 No, unless parties so stipulate

 Yes

 Yes

Generally no (except in B.C. and Quebec), unless the parties agree to it or the governing arbitral institution’s rule require it

Is Security for Costs Available?

 Generally yes

 Yes

 No

Yes

Is Consolidation of Proceedings Possible?

 No, unless parties have expressly agreed

 No, unless parties have expressly agreed

 No, unless parties have expressly agreed

 No, unless paarrttiieess hhaavvee expressly agreed or the supervising court orders it

Are Formal Pleadings Common?

 Yes, although not routine and tend to be less detailed than English-style pleadings

 Yes

 Yes but often less formal and detailed than English pleadings

 Yes

What Is Practice for Disclosure/ Discovery of Documents?

 Generally broad discovery is sought by parties and allowed by arbitrators

 Practice varies considerably according to nationality of arbitrators. English panels tend to adopt English court procedures or IBA Rules

 Practice varies considerably according to nationality of arbitrators. Bermudian/English panels tend to adopt Bermuda court procedures or IBA rules

IBA Rules are frequently used. As a guide to the expectations of Canadian panels, civil procedure in Canada tends toward relatively broad documentary discovery.

Do Parties File Written Witness Statements?

 Generally no

 Yes

 Generally yes

Generally yes

Can Witnesses Be Deposed?

 Yes

 No

 No

No

Is Discovery Available Against Third Parties?

Yes but there are practical limitations

Yes but there are significant practical limitations and US 1782 discovery is not available

Yes but there are significant practical limitations and US 1782 discovery is not available

No

What Rules of Evidence Apply?

 Generally, formal rules of evidence do not apply

 Unless agreed otherwise by the parties, the arbitrators determine whether to apply strict rules of evidence

 Unless agreed otherwise by the parties, the arbitrators determine whether to apply strict rules of evidence

Unless agreed otherwise by the parties, the arbitrators determine whether to apply strict rules of evidence and in so doing often refer to the IBA Rules

Are Arbitrators Required to Produce a Reasoned Award?

 No unless parties agree or adopted rules require it

 Yes

 Yes

Yes, unless the parties have agreed otherwise

Do the Arbitrators Have Jurisdiction to Award Interest?

 Generally pre-award interest may be awarded as allowed by applicable State law

Yes, both pre-award and post-award interest

 Yes, both pre-award and post- award interest at simple or compound rates

Yes, both pre-award and post-award interest

Is the Losing Party Ordered to Pay the Winning Party’s Legal Costs?

Generally no

Generally yes - agreements to prohibit costs shifting are unenforceable)

Generally yes - agreements to prohibit costs shifting are permitted

Generally yes - agreements to prohibit costs shifting are permitted

What Is the Scope of Parties’ Rights of Appeal?

 Narrow but limited rights of appeal do exist including for “manifest disregard for the law” and “complete irrationality”

 Broad by international standards and includes right to appeal on points of law (unless right is expressly waived)

 Very limited

Very limited

Enforcement of Award?

 New York Convention applies

 New York Convention applies

 New York Convention applies

New York Convention applies provided that the legal relationship is commercial

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