JUDICIAL SCRUTINY OF DOMESTIC COMMERCIAL ARBITRAL AWARDS

Abstract

New provincial legislation on domestic commercial arbitration has abolished the court's ability to set aside an arbitral award for "error of law on the face of the record". The new legislation substitutes a statutory leave to appeal on issues of law. The manner in which this leave to appeal mechanism will be applied by the courts will determine whether the courts are to have a substantial role in scrutinising the merits of commercial awards. There is strong appellate authority in England and British Columbia which holds that, in the interests of speed and finality, leave to appeal should not generally be granted unless the award is obviously wrong at law: Decisions of first instance in other provinces and the more activist approach which has recently been taken in the review of labour arbitral awards make it uncertain whether this restrictive approach will be applied in other provinces. If it is not, the liberal granting of leave to appeal will result in increased costs and delays and create a significant possibility that commercial arbitration will not fulfil the promise its advocates say it holds.