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This Act is current to September 19, 2018
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

International Commercial Arbitration Act

[RSBC 1996] CHAPTER 233

Contents
Part 1 — Application and Interpretation
1Scope of application
2Definitions and interpretation
3Receipt of written communications
4Waiver of right to object
5Extent of judicial intervention
6International origin and general principles
Part 2 — Arbitration Agreement
7Definition of arbitration agreement
8Stay of legal proceedings
9Arbitration agreement and interim measures by court
Part 3 — Composition of Arbitral Tribunal
10Number of arbitrators
11Appointment of arbitrators
12Grounds for challenge
13Challenge procedure
14Failure or impossibility to act
15Termination of mandate and substitution of arbitrator
Part 4 — Jurisdiction of Arbitral Tribunal
16Competence of arbitral tribunal to rule on its jurisdiction
Part 4.1 — Interim Measures and Preliminary Orders
Division 1 — Interim Measures
17Power of arbitral tribunal to order interim measures
17.01Conditions for granting interim measures
Division 2 — Preliminary Orders
17.02Applications for preliminary orders and conditions for granting preliminary orders
17.03Specific regime for preliminary orders
Division 3 — Provisions Applicable to Interim Measures and Preliminary Orders
17.04Modification, suspension or termination of interim measures and preliminary orders
17.05Provision of security
17.06Disclosure
17.07Costs and damages
Division 4 — Recognition and Enforcement of Interim Measures
17.08Recognition and enforcement
17.09Grounds for refusing recognition or enforcement
Division 5 — Court-Ordered Interim Measures
17.10Court-ordered interim measures
Part 5 — Conduct of Arbitral Proceedings
18Equal treatment of parties
19Determination of rules of procedure
20Place of arbitration
21Commencement of arbitral proceedings
21.01Representation in arbitral proceedings
22Language
23Statements of claim and defence
24Hearings and written proceedings
25Default of a party
26Expert appointed by arbitral tribunal
27Court assistance in taking evidence
27.01Enforcement of consolidation agreements
Part 6 — Making of Arbitral Award and Termination of Proceedings
28Rules applicable to substance of dispute
29Decision making by panel of arbitrators
30Settlement
31Form and content of arbitral award
32Termination of proceedings
33Correction and interpretation of award; additional award
Part 7 — Recourse Against Arbitral Award
34Application for setting aside arbitral award
Part 8 — Recognition and Enforcement of Arbitral Awards
35Recognition and enforcement
36Grounds for refusing recognition or enforcement
Part 9 — General
36.01Privacy and confidentiality
36.02Immunity
37Repealed
38Offence Act

Part 1 — Application and Interpretation

Scope of application

1   (1) This Act applies to international commercial arbitration, subject to any agreement which is in force between Canada and any other state or states and which applies in British Columbia.

(2) This Act, except sections 8, 9, 17.08, 17.09, 17.10, 35 and 36, applies only if the place of arbitration is in British Columbia.

(3) An arbitration is international if

(a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states,

(b) one of the following places is located outside the state in which the parties have their places of business:

(i) the place of arbitration if determined in, or pursuant to, the arbitration agreement;

(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed;

(iii) the place with which the subject matter of the dispute is most closely connected, or

(c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one state.

(4) For the purposes of subsection (3),

(a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement, and

(b) if a party does not have a place of business, reference is to be made to the party's habitual residence.

(5) For the purposes of subsection (3), the provinces and territories of Canada must be considered one state.

(6) An arbitration is commercial if it arises out of a relationship of a commercial nature including, but not limited to, the following:

(a) a trade transaction for the supply or exchange of goods or services;

(b) a distribution agreement;

(c) a commercial representation or agency;

(d) an exploitation agreement or concession;

(e) a joint venture or other related form of industrial or business cooperation;

(f) the carriage of goods or passengers by air, sea, rail or road;

(g) the construction of works;

(h) insurance;

(i) licensing;

(j) factoring;

(k) leasing;

(l) consulting;

(m) engineering;

(n) financing;

(o) banking;

(p) investing.

(7) If an arbitration agreement respecting an international commercial arbitration contains a reference to the Arbitration Act, that reference is deemed to be a reference to this Act.

(8) This Act does not affect any other law in force in British Columbia by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only in accordance with provisions other than those of this Act.

Definitions and interpretation

2   (1) For the purposes of this Act:

"arbitral tribunal" means a sole arbitrator or a panel of arbitrators;

"arbitration" means any arbitration whether or not administered by a permanent arbitral institution;

"Chief Justice" means the Chief Justice of the Supreme Court or his or her designate;

"court" means a body or an organ of the judicial system of a state;

"party" means a party to an arbitration agreement and includes a person claiming through or under a party;

"Supreme Court" means the Supreme Court of British Columbia.

(2) Where this Act, except section 28, leaves the parties free to determine a certain issue, that freedom includes the right of the parties to authorize a third party, including an institution, to make that determination.

(3) Where this Act

(a) refers to the fact that the parties have agreed or that they may agree, or

(b) in any other way refers to an agreement of the parties,

that agreement includes any arbitration rules referred to in that agreement.

(4) Where this Act, other than section 25 (1) or 32 (2) (a), refers to a claim, it also applies to a counterclaim, and where it refers to a defence, it also applies to a defence to that counterclaim.

Receipt of written communications

3   (1) Unless otherwise agreed by the parties,

(a) any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at the addressee's place of business, habitual residence or mailing address, and

(b) the communication is deemed to have been received on the day it is so delivered.

(2) If none of the places referred to in subsection (1) (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered mail or by any other means which provides a record of the attempt to deliver it.

(3) This section does not apply to written communications in respect of court proceedings.

Waiver of right to object

4   (1) A party who knows that

(a) any provision of this Act, or

(b) any requirement under the arbitration agreement,

has not been complied with and yet proceeds with the arbitration without stating an objection to noncompliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, is deemed to have waived the right to object.

(2) In subsection (1) (a), "any provision of this Act" means any provision of this Act in respect of which the parties may otherwise agree.

Extent of judicial intervention

5   In matters governed by this Act,

(a) a court must not intervene unless so provided in this Act, and

(b) an arbitral proceeding of an arbitral tribunal or an order, ruling or arbitral award made by an arbitral tribunal must not be questioned, reviewed or restrained by a proceeding under the Judicial Review Procedure Act or otherwise except to the extent provided in this Act.

International origin and general principles

6   (1) In interpreting this Act, a court or arbitral tribunal

(a) must have regard to the international origins of the Act, the need to promote uniformity in its application and the observance of good faith, and

(b) may have regard to the following:

(i) the Reports of the United Nations Commission on International Trade Law on the work of its eighteenth (1985) and thirty-ninth (2006) sessions (UN Docs A/40/17 and A/61/17);

(ii) the International Commercial Arbitration Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration (UN Doc A/CN.9/264);

(iii) the Commentary of the United Nations Commission on International Trade Law concerning the UNCITRAL Model Law on International Commercial Arbitration 1985 with amendments as adopted in 2006 (UN Sales No. E.08.V.4).

(2) Questions concerning matters governed by this Act that are not expressly settled in this Act are to be settled in conformity with the general principles on which this Act is based.

Part 2 — Arbitration Agreement

Definition of arbitration agreement

7   (1) In this Act:

"arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes that have arisen or that may arise between the parties in respect of a defined legal relationship, whether contractual or not;

"data message" means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy;

"electronic communication" means any communication that the parties make by means of data messages.

(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3) An arbitration agreement must be in writing.

(4) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct or by other means.

(5) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained in the electronic communication is accessible so as to be useable for subsequent reference.

(6) An arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

(7) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement in writing if the reference is such as to make that arbitration clause part of the contract.

Stay of legal proceedings

8   (1) If a party to an arbitration agreement commences legal proceedings in a court against another party to the agreement in respect of a matter agreed to be submitted to arbitration, a party to the legal proceedings may, before submitting the party's first statement on the substance of the dispute, apply to that court to stay the proceedings.

(2) In an application under subsection (1), the court must make an order staying the legal proceedings unless it determines that the arbitration agreement is null and void, inoperative or incapable of being performed.

(3) Even if an application has been brought under subsection (1) and even if the issue is pending before the court, an arbitration may be commenced or continued and an arbitral award made.

Arbitration agreement and interim measures by court

9   It is not incompatible with an arbitration agreement for a party to request from a court, before or during arbitral proceedings, an interim measure of protection and for a court to grant that measure.

Part 3 — Composition of Arbitral Tribunal

Number of arbitrators

10   (1) The parties are free to determine the number of arbitrators.

(2) Failing the determination referred to in subsection (1), the number of arbitrators is 3.

Appointment of arbitrators

11   (1) A person of any nationality may be an arbitrator.

(2) Subject to subsections (6) and (7), the parties are free to agree on a procedure for appointing an arbitral tribunal.

(3) Failing any agreement referred to in subsection (2), in an arbitration with 3 arbitrators, each party must appoint one arbitrator, and the 2 appointed arbitrators must appoint the third arbitrator.

(4) If the appointment procedure in subsection (3) applies and

(a) a party fails to appoint an arbitrator within 30 days after receipt of a request to do so from the other party, or

(b) the 2 appointed arbitrators fail to agree on the third arbitrator within 30 days after their appointment,

the appointment must be made, on request of a party, by the Chief Justice.

(5) Failing any agreement referred to in subsection (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator, the appointment must be made, on request of a party, by the Chief Justice.

(6) If, under an appointment procedure agreed on by the parties,

(a) a party fails to act as required under that procedure,

(b) the parties, or 2 appointed arbitrators, fail to reach an agreement expected of them under that procedure, or

(c) a third party, including an institution, fails to perform any function entrusted to the third party under that procedure,

a party may request the Chief Justice to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

(7) A decision on a matter entrusted by subsection (4), (5) or (6) to the Chief Justice is final and is not subject to appeal.

(8) The Chief Justice, in appointing an arbitrator, must have due regard to

(a) any qualifications required of the arbitrator by the agreement of the parties, and

(b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator.

(9) Unless the parties have previously agreed to the appointment of a sole or third arbitrator who is of the same nationality as any of the parties, the Chief Justice must not appoint a sole or third arbitrator who is of the same nationality as that of any of the parties.

Grounds for challenge

12   (1) When a person is approached in connection with his or her possible appointment as an arbitrator, the person must disclose any circumstances likely to give rise to justifiable doubts as to the person's independence or impartiality.

(2) An arbitrator, from the time of his or her appointment and throughout the arbitral proceedings, must, without delay, disclose to the parties any circumstances referred to in subsection (1) unless they have already been informed of them by the arbitrator.

(3) An arbitrator may be challenged only if

(a) circumstances exist that give rise to justifiable doubts as to the arbitrator's independence or impartiality, or

(b) the arbitrator does not possess the qualifications agreed to by the parties.

(3.1) For the purposes of subsection (3) (a), there are justifiable doubts as to the arbitrator's independence or impartiality only if there is a real danger of bias on the part of the arbitrator in conducting the arbitration.

(4) A party may challenge an arbitrator appointed by that party, or in whose appointment the party has participated, only for reasons of which the party becomes aware after the appointment has been made.

Challenge procedure

13   (1) Subject to subsection (4), the parties are free to agree on a procedure for challenging an arbitrator.

(2) Failing any agreement referred to in subsection (1), a party who intends to challenge an arbitrator must, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in section 12 (3), send a written statement of the reasons for the challenge to the arbitral tribunal.

(3) Unless the arbitrator challenged under subsection (2) withdraws from office or the other party agrees to the challenge, the arbitral tribunal must decide on the challenge.

(4) If a challenge under any procedure agreed on by the parties or under the procedure under subsection (2) is not successful, the challenging party may request the Supreme Court, within 30 days after having received notice of the decision rejecting the challenge, to decide on the challenge.

(5) If a request is made under subsection (4), the Supreme Court may refuse to decide on the challenge, if it is satisfied that, under the procedure agreed on by the parties, the party making the request had an opportunity to have the challenge decided on by other than the arbitral tribunal.

(6) The decision of the Supreme Court under subsection (4) is final and is not subject to appeal.

(7) While a request under subsection (4) is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an arbitral award.

Failure or impossibility to act

14   (1) The mandate of an arbitrator terminates if

(a) the arbitrator becomes de jure or de facto unable to perform the arbitrator's functions or for other reasons fails to act without undue delay, and

(b) the arbitrator withdraws from office or the parties agree to the termination of the arbitrator's mandate.

(2) If a controversy remains concerning any of the grounds referred to in subsection (1) (a), a party may request the Supreme Court to decide on the termination of the mandate.

(3) A decision of the Supreme Court under subsection (2) is final and is not subject to appeal.

(4) If, under this section or section 13 (3), an arbitrator withdraws from office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this section or section 12 (3).

Termination of mandate and substitution of arbitrator

15   (1) In addition to the circumstances referred to in section 13 or 14, the mandate of an arbitrator terminates

(a) if the arbitrator withdraws from office for any reason, or

(b) by or pursuant to agreement of the parties.

(2) If the mandate of an arbitrator terminates, a substitute arbitrator must be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

(3) Unless otherwise agreed by the parties,

(a) if the sole or presiding arbitrator is replaced, any hearings previously held must be repeated, and

(b) if an arbitrator, other than the sole or presiding arbitrator is replaced, any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made before the replacement of an arbitrator under this section is not invalid solely because there has been a change in the composition of the tribunal.

Part 4 — Jurisdiction of Arbitral Tribunal

Competence of arbitral tribunal to rule on its jurisdiction

16   (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,

(a) an arbitration clause which forms part of a contract must be treated as an agreement independent of the other terms of the contract, and

(b) a decision by the arbitral tribunal that the contract is null and void must not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction must be raised not later than the submission of the statement of defence; however, a party is not precluded from raising such a plea by the fact that the party has appointed, or participated in the appointment of, an arbitrator.

(3) A plea that the arbitral tribunal is exceeding the scope of its authority must be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

(4) The arbitral tribunal may, in either of the cases referred to in subsection (2) or (3), admit a later plea if it considers the delay justified.

(5) The arbitral tribunal may rule on a plea referred to in subsection (2) or (3) either as a preliminary question or in an award on the merits.

(6) If the arbitral tribunal rules as a preliminary question on a plea referred to in subsection (2) or (3), any party may request the Supreme Court, within 30 days after having received notice of that ruling, to decide the matter.

(7) The decision of the Supreme Court under subsection (6) is final and is not subject to appeal.

(8) While a request under subsection (6) is pending, the arbitral tribunal may continue the arbitral proceedings and make an arbitral award.

Part 4.1 — Interim Measures and Preliminary Orders

Division 1 — Interim Measures

Power of arbitral tribunal to order interim measures

17   (1) Unless otherwise agreed by the parties and subject to section 17.01, the arbitral tribunal may, at the request of a party, grant an interim measure.

(2) In this Act, "interim measure" means any temporary measure, whether in the form of an arbitral award or in another form, by which, at any time before the issuance of the arbitral award by which the dispute is finally decided, the arbitral tribunal orders a party to

(a) maintain or restore the status quo pending determination of the dispute,

(b) take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself,

(c) provide a means of preserving assets out of which a subsequent arbitral award may be satisfied,

(d) preserve evidence that may be relevant and material to the resolution of the dispute, or

(e) provide appropriate security for costs in connection with arbitral proceedings.

Conditions for granting interim measures

17.01   (1) The party requesting an interim measure referred to in section 17 (2) (a), (c) or (e) must satisfy the arbitral tribunal that

(a) harm not adequately reparable by an award of damages or other monetary award is likely to result if the measure is not ordered,

(b) the harm referred to in paragraph (a) substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted, and

(c) there is a reasonable possibility that the requesting party will succeed on the merits of the claim.

(2) A determination of an arbitral tribunal under subsection (1) (c) does not affect the discretion of the arbitral tribunal in making any subsequent determination.

(3) The requirements in subsection (1) apply, only to the extent the arbitral tribunal considers appropriate, to a request for an interim measure referred to in section 17 (2) (b) or (d).

Division 2 — Preliminary Orders

Applications for preliminary orders and conditions for granting preliminary orders

17.02   (1) Unless otherwise agreed by the parties, a party may, without notice to any other party, make a request for an interim measure together with an application for a preliminary order directing a party not to frustrate the purpose of the interim measure requested.

(2) Subject to subsection (3), the arbitral tribunal may grant a preliminary order if the arbitral tribunal considers that prior disclosure of the request for the interim measure to the party against whom it is directed risks frustrating the purpose of the interim measure.

(3) Section 17.01 applies to an application for a preliminary order and, for that purpose, the harm to be assessed under section 17.01 (1) (a) and (b) is the harm likely to result from the order being granted or not.

Specific regime for preliminary orders

17.03   (1) Immediately after the arbitral tribunal makes a determination in respect of an application for a preliminary order, the arbitral tribunal must give notice to all the parties of the following:

(a) the request for the interim measure;

(b) the application for the preliminary order;

(c) the preliminary order, if any;

(d) all other communications, including by indicating the content of any oral communication, between any party and the arbitral tribunal in relation to a matter referred to in paragraph (a), (b) or (c).

(2) At the same time, the arbitral tribunal must give an opportunity to any party against whom a preliminary order is directed to present the party's case at the earliest practicable time.

(3) The arbitral tribunal must decide promptly on any objection to a preliminary order.

(4) A preliminary order expires 20 days after the date on which it was issued by the arbitral tribunal.

(5) After the party against whom a preliminary order is directed has been given notice and an opportunity to present its case, the arbitral tribunal may issue an interim measure adopting or modifying the preliminary order.

(6) A preliminary order

(a) is binding on the parties but is not subject to enforcement by a court, and

(b) is not an arbitral award.

Division 3 — Provisions Applicable to Interim Measures and Preliminary Orders

Modification, suspension or termination of interim measures and preliminary orders

17.04   On application of any party or, in exceptional circumstances and with prior notice to the parties, on the arbitral tribunal's own initiative, an arbitral tribunal may modify, suspend or terminate an interim measure or a preliminary order it has granted.

Provision of security

17.05   (1) The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.

(2) The arbitral tribunal must require the party applying for a preliminary order to provide security in connection with the order unless the arbitral tribunal considers it inappropriate or unnecessary to do so.

Disclosure

17.06   (1) The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which an interim measure was requested or granted.

(2) The party applying for a preliminary order must disclose to the arbitral tribunal all circumstances that are likely to be relevant to the arbitral tribunal's determination whether to grant or maintain the order.

(3) The disclosure obligation under subsection (2) continues until the party against whom the preliminary order has been requested has had an opportunity to present its case.

(4) After the party against whom a preliminary order has been requested has had an opportunity to present its case, the arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the preliminary order was requested or granted.

Costs and damages

17.07   (1) The party requesting an interim measure or applying for a preliminary order is liable for any costs and damages caused by the interim measure or the preliminary order to any party if the arbitral tribunal later determines that, in the circumstances, the measure or the order should not have been granted.

(2) The arbitral tribunal may award the costs and damages referred to in subsection (1) at any time during the arbitral proceedings.

Division 4 — Recognition and Enforcement of Interim Measures

Recognition and enforcement

17.08   (1) Subject to section 17.09, an interim measure issued by an arbitral tribunal must be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced on application to the competent court irrespective of the state in which the interim measure was issued.

(2) The party who is seeking or has obtained recognition or enforcement of an interim measure must promptly inform the court of any modification, suspension or termination of that interim measure.

(3) The court of the state where recognition or enforcement is sought may, if that court considers it proper, order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties.

Grounds for refusing recognition or enforcement

17.09   (1) Recognition or enforcement of an interim measure may be refused only

(a) at the request of the party against whom the interim measure is directed if the court is satisfied that

(i) such refusal is warranted on the grounds referred to in section 36 (1) (a) (i), (ii), (iii) or (iv),

(ii) a decision of the arbitral tribunal with respect to the provision of security in connection with the interim measure has not been complied with, or

(iii) the interim measure has been suspended or terminated by the arbitral tribunal or, where so empowered, by a court of the state in which the arbitration takes place or under the law of which that interim measure was granted, or

(b) if the court finds that

(i) the interim measure is incompatible with the powers conferred upon the court, unless the court decides to reformulate the interim measure to the extent necessary to adapt the interim measure to its own powers and procedures for the purposes of enforcing that interim measure and without modifying its substance, or

(ii) any of the grounds referred to in section 36 (1) (b) (i) or (ii) apply to the recognition or enforcement of the interim measure.

(2) A determination made by the court on a ground referred to in subsection (1) is effective only for the purposes of the application to recognize or enforce the interim measure.

(3) The court where recognition or enforcement is sought may not, in making a determination on a ground referred to in subsection (1), undertake a review of the substance of the interim measure.

Division 5 — Court-Ordered Interim Measures

Court-ordered interim measures

17.10   (1) A court has the same powers to issue an interim measure in relation to arbitral proceedings, irrespective of whether the place of those proceedings is in British Columbia, as that court has in relation to court proceedings.

(2) The court must exercise the powers referred to in subsection (1) in accordance with its own procedures in consideration of the specific features of international arbitration.

(3) When requested to grant an interim measure, the court may, if it considers it proper, refer the request to an arbitral tribunal.

Part 5 — Conduct of Arbitral Proceedings

Equal treatment of parties

18   The parties must be treated with equality and each party must be given a reasonable opportunity to present their case.

Determination of rules of procedure

19   (1) Subject to this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) Failing any agreement referred to in subsection (1), the arbitral tribunal may, subject to this Act, conduct the arbitration in the manner it considers appropriate.

(3) The power of the arbitral tribunal under subsection (2) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

Place of arbitration

20   (1) The parties are free to agree on the place of arbitration.

(2) Failing any agreement referred to in subsection (1), the place of arbitration must be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

(3) Despite subsection (1), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

Commencement of arbitral proceedings

21   Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

Representation in arbitral proceedings

21.01   (1) A party may be represented in arbitral proceedings by any person of that party's choice, including, but not limited to, a legal practitioner from another state.

(2) Section 15 of the Legal Profession Act does not apply to a person who

(a) is not a member of the Law Society of British Columbia, and

(b) does one or more of the following:

(i) appears as counsel or advocate in arbitral proceedings;

(ii) gives legal advice concerning arbitral proceedings;

(iii) prepares statements, documents or other materials in connection with arbitral proceedings.

Language

22   (1) The parties are free to agree on the language or languages to be used in the arbitral proceedings.

(2) Failing any agreement referred to in subsection (1), the arbitral tribunal must determine the language or languages to be used in the arbitral proceedings.

(3) The agreement or determination, unless otherwise specified, applies to any written statement by a party, any hearing and any arbitral award, decision or other communication by the arbitral tribunal.

(4) The arbitral tribunal may order that any documentary evidence must be accompanied by a translation into the language or languages agreed on by the parties or determined by the arbitral tribunal.

Statements of claim and defence

23   (1) Within the period of time agreed on by the parties or determined by the arbitral tribunal, the claimant must state the facts supporting the claim, the points at issue and the relief or remedy sought, and the respondent must state the respondent's defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.

(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.

(3) Unless otherwise agreed by the parties, either party may amend or supplement a claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.

Hearings and written proceedings

24   (1) Unless otherwise agreed by the parties, the arbitral tribunal must decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings must be conducted on the basis of documents and other materials.

(2) Unless the parties have agreed that no oral hearings are to be held, the arbitral tribunal must hold oral hearings at an appropriate stage of the proceedings, if so requested by a party.

(3) The parties must be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purpose of inspection of documents, goods or other property.

(4) All statements, documents or other information supplied to, or applications made to, the arbitral tribunal by one party must be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision is to be communicated to the parties.

(5) [Repealed 2018-8-14.]

Default of a party

25   (1) Unless otherwise agreed by the parties, if, without showing sufficient cause, the claimant fails to communicate the statement of claim in accordance with section 23 (1), the arbitral tribunal must terminate the proceedings.

(2) Unless otherwise agreed by the parties, if, without showing sufficient cause, the respondent fails to communicate the statement of defence in accordance with section 23 (1), the arbitral tribunal must continue the proceedings without treating that failure in itself as an admission of the claimant's allegations.

(3) Unless otherwise agreed by the parties, if, without showing sufficient cause, a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitral award on the evidence before it.

Expert appointed by arbitral tribunal

26   (1) Unless otherwise agreed by the parties, the arbitral tribunal may

(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and

(b) require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for the expert's inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert must, after delivery of the expert's written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to the expert and to present expert witnesses in order to testify on the points at issue.

(3) Unless otherwise agreed by the parties, the expert must, on the request of a party, make available to that party, for examination, all documents, goods or other property in the expert's possession with which the expert was provided in order to prepare the expert's report.

Court assistance in taking evidence

27   The arbitral tribunal, or a party with the approval of the arbitral tribunal, may request from the Supreme Court assistance in taking evidence, and the court may execute the request within its competence and according to its rules on taking evidence.

Enforcement of consolidation agreements

27.01   (1) If all parties to 2 or more arbitral proceedings have agreed to consolidate those proceedings, a party, with notice to the other parties, may apply to the Supreme Court for an order that the proceedings be consolidated as agreed to by the parties.

(2) Subsection (1) does not limit the parties' ability to consolidate arbitral proceedings without a court order.

(3) If all parties to the arbitral proceedings have agreed to consolidate the proceedings but have not agreed, by adopting procedural rules or otherwise,

(a) to the designation of parties as claimants or respondents or a method for making those designations, or

(b) to the method for determining the composition of the arbitral tribunal,

the court may, on application under subsection (1) but subject to subsection (4), make an order deciding either or both of those matters.

(4) If the arbitral proceedings are under different arbitration agreements, the court must not make an order under this section unless, by their arbitration agreements or otherwise, the parties have agreed

(a) to the same place of arbitration or a method for determining a single place of arbitration for the consolidated proceedings in British Columbia,

(b) to the same procedural rules or a method for determining a single set of procedural rules for the conduct of the consolidated proceedings, and

(c) either

(i) to have the consolidated proceedings administered by the same arbitral institution, or

(ii) to have the consolidated proceedings not be administered by any arbitral institution.

(5) In making an order under this section, the court may have regard to any circumstances it considers relevant, including

(a) whether one or more arbitrators have been appointed in one or more of the arbitral proceedings,

(b) whether the applicant delayed applying for the order, and

(c) whether any material prejudice to any of the parties or any injustice may result from making the order.

Part 6 — Making of Arbitral Award and Termination of Proceedings

Rules applicable to substance of dispute

28   (1) The arbitral tribunal must decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute.

(2) Any designation by the parties of the law or legal system of a given state must be construed, unless otherwise expressed, as directly referring to the substantive law of that state and not to its conflict of laws rules.

(3) Failing any designation of the law under subsection (1) by the parties, the arbitral tribunal must apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute.

(4) The arbitral tribunal may decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorized it to do so.

(5) In all cases, the arbitral tribunal must decide in accordance with the terms of the contract and must take into account the usages of the trade applicable to the transaction.

Decision making by panel of arbitrators

29   (1) Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal must be made by a majority of all its members.

(2) Despite subsection (1), if authorized by the parties or all the members of the arbitral tribunal, questions of procedure may be decided by a presiding arbitrator.

Settlement

30   (1) It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.

(2) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal must terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.

(3) An arbitral award on agreed terms must be made in accordance with section 31 and must state that it is an arbitral award.

(4) An arbitral award on agreed terms has the same status and effect as any other arbitral award on the substance of the dispute.

Form and content of arbitral award

31   (1) An arbitral award must be made in writing and must be signed by the members of the arbitral tribunal.

(2) For the purposes of subsection (1), in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal are sufficient if the reason for any omitted signature is stated.

(3) The arbitral award must state the reasons on which it is based, unless

(a) the parties have agreed that no reasons are to be given, or

(b) the award is an arbitral award on agreed terms under section 30.

(4) The arbitral award must state its date and the place of arbitration as determined in accordance with section 20 and the award is deemed to have been made at that place.

(5) After the arbitral award is made, a signed copy must be delivered to each party.

(6) The arbitral tribunal may, at any time during the arbitral proceedings, make a partial arbitral award that finally determines any matter with respect to which it may make a final arbitral award.

(7) Unless otherwise agreed by the parties, the arbitral tribunal may award interest.

(8) Unless otherwise agreed by the parties, the costs of an arbitration are in the discretion of the arbitral tribunal which may, in awarding costs,

(a) include as costs,

(i) the fees and expenses of the arbitrators and expert witnesses,

(ii) legal fees and expenses,

(iii) any administration fees of an institution, and

(iv) any other expenses incurred in connection with the arbitral proceedings, and

(b) specify

(i) the party entitled to costs,

(ii) the party who must pay the costs,

(iii) the amount of costs or method of determining that amount, and

(iv) the manner in which the costs must be paid.

Termination of proceedings

32   (1) The arbitral proceedings are terminated by the final arbitral award or by an order of the arbitral tribunal under subsection (2).

(2) The arbitral tribunal must issue an order for the termination of the arbitral proceedings if

(a) the claimant withdraws the claim, unless the respondent objects to the order and the arbitral tribunal recognizes a legitimate interest on the respondent's part in obtaining a final settlement of the dispute,

(b) the parties agree on the termination of the proceedings, or

(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

(3) Subject to sections 33 and 34 (4), the mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings.

Correction and interpretation of award; additional award

33   (1) Within 30 days after receipt of the arbitral award, unless another period of time has been agreed on by the parties,

(a) a party may request the arbitral tribunal to correct in the arbitral award any computation errors, any clerical or typographical errors or any other errors of a similar nature, and

(b) a party may, if agreed by the parties, request the arbitral tribunal to give an interpretation of a specific point or part of the arbitral award.

(2) If the arbitral tribunal considers the request made under subsection (1) to be justified, it must make the correction or give the interpretation within 30 days after receipt of the request and the interpretation forms part of the arbitral award.

(3) The arbitral tribunal may correct any error of the type referred to in subsection (1) (a), on its own initiative, within 30 days after the date of the arbitral award.

(4) Unless otherwise agreed by the parties, a party may request, within 30 days after receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award.

(5) If the arbitral tribunal considers the request made under subsection (4) to be justified, it must make the additional arbitral award within 60 days.

(6) The arbitral tribunal may extend, if necessary, the period of time within which it must make a correction, give an interpretation or make an additional arbitral award under subsection (2) or (4).

(7) Section 31 applies to a correction or interpretation of the arbitral award or to an additional arbitral award made under this section.

Part 7 — Recourse Against Arbitral Award

Application for setting aside arbitral award

34   (1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with subsections (2) and (3).

(2) An arbitral award may be set aside by the Supreme Court only if

(a) the party making the application furnishes proof that

(i) a party to the arbitration agreement was under some incapacity,

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, the law of British Columbia,

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the party's case,

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside, or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing any agreement, was not in accordance with this Act, or

(b) the court finds that

(i) the subject matter of the dispute is not capable of settlement by arbitration under the law of British Columbia, or

(ii) the arbitral award is in conflict with the public policy in British Columbia.

(3) An application for setting aside may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal.

(4) When asked to set aside an arbitral award the court may, if it is appropriate and it is requested by a party, adjourn the proceedings to set aside the arbitral award for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside the arbitral award.

Part 8 — Recognition and Enforcement of Arbitral Awards

Recognition and enforcement

35   (1) Subject to this section and section 36, an arbitral award, irrespective of the state in which it was made, must be recognized as binding and, on application to the Supreme Court, must be enforced.

(2) Unless the court orders otherwise, the party relying on an arbitral award or applying for its enforcement must supply

(a) the duly authenticated original arbitral award or a duly certified copy of it, and

(b) the original arbitration agreement or a duly certified copy of it.

(3) If the arbitral award or arbitration agreement is not made in an official language of Canada, the party must supply a duly certified translation of it into an official language.

Grounds for refusing recognition or enforcement

36   (1) Recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only

(a) at the request of the party against whom it is invoked, if that party furnishes to the competent court where recognition or enforcement is sought proof that

(i) a party to the arbitration agreement was under some incapacity,

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made,

(iii) the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present the party's case,

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the arbitral award which contains decisions on matters submitted to arbitration may be recognized and enforced,

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement, was not in accordance with the law of the state where the arbitration took place, or

(vi) the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made, or

(b) if the court finds that

(i) the subject matter of the dispute is not capable of settlement by arbitration under the law of British Columbia, or

(ii) the recognition or enforcement of the arbitral award would be contrary to the public policy in British Columbia.

(2) If an application for setting aside or suspension of an arbitral award has been made to a court referred to in subsection (1) (a) (vi), the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the arbitral award, order the other party to provide appropriate security.

(3) For the purposes of subsection (1) (b) (ii), third party funding for an arbitration is not contrary to the public policy in British Columbia.

(4) In subsection (3), "third party funding", in relation to an arbitration, means funding for the arbitration that is provided

(a) to a party to the arbitration agreement by a person who is not a party to that agreement, and

(b) in consideration of the person who provides the funding receiving a financial benefit if the funded party is successful in the arbitration.

Part 9 — General

Privacy and confidentiality

36.01   (1) Unless otherwise agreed by the parties, all hearings and meetings in arbitral proceedings must be held in private.

(2) Unless otherwise agreed by the parties, the parties and the arbitral tribunal must not disclose any of the following:

(a) proceedings, evidence, documents and information in connection with the arbitration that are not otherwise in the public domain;

(b) an arbitral award.

(3) Subsection (2) does not apply if disclosure is

(a) required by law,

(b) required to protect or pursue a legal right, including for the purposes of preparing and presenting a claim or defence in the arbitral proceedings or enforcing or challenging an arbitral award, or

(c) authorized by a competent court.

Immunity

36.02   An arbitrator is not liable for anything done or omitted in connection with an arbitration unless the act or omission is in bad faith or the arbitrator has engaged in intentional wrongdoing.

Repealed

37   [Repealed 2018-8-22.]

Offence Act

38   Section 5 of the Offence Act does not apply to this Act.