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ADR CLAUSES

ARBITRATION

Arbitration Clause

All disputes [arising out of or in connection with this agreement, or in respect of any defined legal relationship associated therewith or derived therefrom] [related to the execution or performance of the agreement] shall be facilitated by, and finally resolved, pursuant to the Commercial Arbitration Rules of The Canadian Foundation for Dispute Resolution.

Notes:

Parties may wish to consider:

  • a more narrowly worded or a more broadly worded clause
    • the clause set out above offers the option of a broad wording [arising out of or in connection with this agreement, or in respect of any defined legal relationship associated therewith or derived therefrom] or a more narrow wording [related to the execution or performance of the agreement]
    • the intent of the more narrow wording is to refer to arbitration only rights and obligations created by the agreement or disputes over the meaning or effect of the agreement
    • the intent of the broader wording is to include, in addition, claims or disputes arising out of the existence of a contractual obligation
  • if very limited issues only are to go to arbitration, then the arbitration clause should specifically detail those limits
  • by limiting the application of the clause, it is more likely that other issues may become the subject of litigation.

Parties should consider:

  • mediation prior to arbitration;
  • clearly stating the matters in dispute;
  • the jurisdiction of the arbitrator;
  • the qualifications of the arbitrator;
  • the number of arbitrators;
  • is the arbitration award binding;
  • applicable law;
  • arbitration procedures;
  • the place of the arbitration;
  • modification of Rules incorporated by reference;
  • production of documents;
  • time frame for award;
  • how costs are to be dealt with;
  • arbitrators’ fees;
  • variation of specific provisions of Arbitration Act;
  • rights of appeal
    • parties may expand rights of appeal by specifying that the parties may appeal an award to the Court on a question of law, on a question of fact, or on a question of mixed law and fact. The review standard on appeal is ‘Does the reviewing Court agree with the interpretation of the arbitrator?’
    • in the absence of such expanded wording, the parties may appeal an award to the Court on a question of law only with leave of the Court.

These ADR Clauses have been produced by The Canadian Foundation for Dispute Resolution. Any feedback or concerns on the content of this document please contact CFDR at the addresses below.

The Canadian Foundation for Dispute Resolution
234 Eglinton Avenue East, Suite 500, Toronto, Ontario, M4P 1K5
Tel. (416) 487-4733 Fax. (416) 487-4429

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