Arbitration Act
Consolidated act- Citation
- S.N.W.T. 2022, c.14
- Source
- Unofficial consolidation PDF (justice.gov.nt.ca)
This is an unofficial reading copy parsed from the Department of Justice consolidation PDF above — itself an office consolidation, not an official statement of the law. The authoritative text is in the Revised Statutes of the Northwest Territories, 1988 and the annual Statutes volumes.
- s.71 amended by RSNWT 1988, c.A-5, continues to apply, to an appeal from an arbitral award resulting from arbitral proceedings conducted under an arbitration agreement made before this section comes into force
- s.72 amended by RSNWT 1988, c.A-5, is deemed to be a reference to this Act
- s.3 amended by RSNWT 1988, c.A-5" is deemed to be a reference to this Act
- s.1 International Commercial Arbitration Act
- s.3 Public Service Act
- s.3 Education Act
- s.13 Limitation of Actions Act
- s.26 Legal Profession Act
- s.31 Interprovincial Subpoenas Act
- s.2 Public Service Act
- s.2 Education Act
- s.75 Community Planning and Development Act
- s.76 Education Act
- s.76 International Commercial Arbitration Act
- s.77 International Commercial Arbitration Act
- s.78 Public Service Act
- Arbitration Act, 1988, s.3
- Arbitration Act, 1988, s.3
- Builders' Lien Act, s.5
- Charter Communities Act, s.95
- Cities, Towns and Villages Act, s.91
- Community Planning and Development Act, s.71
- Community Planning and Development Act, s.72 → #sec_15
- Community Planning and Development Act, s.73 → #sec_52__subsec_3
- Condominium Act, s.21
- Condominium Act, s.27
- Education Act, s.57
- Emergency Management Act, s.22
- Hamlets Act, s.93
- Oil and Gas Land Regulations, s.95
- Order Approving the Preferential Employment Program in the Diavik Diamonds Project Socio-Economic Monitoring Agreement, s.7.1.5
- Public Health Act, s.34
- Public Service Act, s.40.5
- Public Service Act, s.41.02 → #sec_36
- Public Service Act, s.41.02
- Public Service Act, s.43
- Residential Tenancies Act, s.7
- Societies Act, s.7
- Tlicho Community Government Act, s.87
- Uninsured Automobile Coverage Regulations, s.4
The Commissioner of the Northwest Territories, by and with the advice and consent of the Legislative Assembly, enacts as follows:
INTERPRETATION
AND APPLICATION
Definitions
1.In this Act,
"arbitral tribunal" means a sole arbitrator or a panel of arbitrators; (tribunal arbitral)
"interim measure" means a 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 a dispute is finally decided, an 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,
(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; (mesure provisoire)
"international arbitration" means
(a) an arbitration to which the International Commercial Arbitration Act applies, or
(b) if the place of arbitration is a province or another territory in Canada, an arbitration considered to be an international arbitration under the laws of that province or territory; (arbitrage international)
"party", except in section 8, means a person that is a party to an arbitration agreement or to arbitral proceedings. (partie)
Government bound
2.This Act binds the Government of the Northwest Territories.
Application
3.(1) Subject to subsections (4) and (5), this Act applies to an arbitration if the place of arbitration is within the Northwest Territories.
(2) The place of arbitration is within the Northwest Territories if the arbitration agreement
(a) names the Northwest Territories or a place within the Northwest Territories as the place or seat of arbitration;
(b) does not name a place or seat of arbitration, but provides that the arbitration laws of the Northwest Territories are applicable to the dispute;
(c) does not name a place or seat of arbitration and does not provide that the arbitration laws of a specified jurisdiction are applicable to the dispute, but provides that the laws of the Northwest Territories are applicable to the substance of the dispute;
(d) empowers a person or entity to name the place or seat of arbitration, and that person or entity names the Northwest Territories or a place within the Northwest Territories as the place or seat of arbitration; or
(e) does not do any of those things referred to in paragraphs (a) to (d) and the parties to the arbitration agreement have, on the date the parties entered into the arbitration agreement, their places of business in the Northwest Territories.
(3) For the purpose of paragraph (2)(e),
(a) if a party has more than one place of business, the party’s place of business is that which has the closest connection to the arbitration agreement; and
(b) if a party does not have a place of business, a reference to the party’s place of business is to be read as a reference to the party’s last known place of residence.
(4) Sections 4, 5, 8, 31, 45, 46, 47, 64 and 69 of this Act apply to an arbitration whether or not the place of arbitration is within the Northwest Territories.
(5) This Act does not apply to
(a) an international arbitration;
(b) an arbitration under a prescribed agreement entered into by the Government of the Northwest Territories or the Government of Canada and the government of another jurisdiction in or outside Canada, except as provided in the regulations; or
(c) an arbitration under the Public Service Act or the Education Act.
(6) If another enactment authorizes or requires arbitration, this Act applies with any modifications necessary to give effect to that other enactment.
Waiver of right to object
4.A party is deemed to have waived their right to object if
(a) the party knows that
(i) a provision of this Act, other than a provision in respect of which the parties may otherwise agree, has not been complied with, or
(ii) a requirement under the arbitration agreement has not been complied with; and
(b) the party proceeds with the arbitration and does not state an objection to the noncompliance without undue delay, or, if a time limit is provided for stating that objection, within that period of time.
Court intervention limited
5.No court may intervene in matters governed by this Act, except as expressly provided for by this Act.
ARBITRATION AGREEMENT
Arbitration agreement
6.(1) Two or more persons may make an agreement to resolve, by arbitration, a matter that
(a) is the subject of a dispute; or
(b) may be the subject of a dispute in the future.
(2) If the parties to an arbitration agreement make a subsequent agreement regarding how disputes or prospective disputes to which the arbitration agreement applies shall or may be arbitrated, the subsequent agreement is deemed to be a modification of the original arbitration agreement.
(3) If an arbitration agreement incorporates arbitration rules by reference, those rules form part of
(4) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the reference is such as to make that arbitration clause part of the contract.
(5) For greater certainty, an arbitration agreement
(a) need not be in writing;
(b) need not relate to the interpretation, application or performance of a contract; and
(c) may, but need not, be part of another agreement.
Scott v. Avery clauses
7.An agreement that provides that a matter must be adjudicated by arbitration before it may be the subject of a court proceeding is an arbitration agreement in respect of the matter.
Application for stay of proceedings
8.(1) If a party commences court proceedings in a court in the Northwest Territories in respect of a matter that a party to the court proceedings believes is the subject of an arbitration agreement, the party may, before submitting their first response on the substance of the dispute, apply to that court to stay the court proceedings.
(2) In an application under subsection (1), the court shall make an order staying the court proceedings unless it determines that
(a) the court proceedings are not in respect of any matter that is the subject of an arbitration agreement;
(b) a person against which an arbitration agreement is sought to be enforced entered into the arbitration agreement while under a legal incapacity;
(c) the alleged arbitration agreement does not exist, is void or is unenforceable; or
(d) the dispute is not capable of being the subject of arbitration under the laws of the Northwest Territories.
(3) Unless otherwise ordered by the court, an arbitration may be commenced or continued and an arbitral award made even if an application has been brought under subsection (1) and the issue is pending before the court.
(4) If the court stays the court proceedings in whole or in part without making a finding concerning the existence of a circumstance described in paragraphs (2)(a) to (d), an arbitral tribunal is not precluded from determining whether the circumstance exists.
(5) If the court finds that one or more of the circumstances described in paragraphs (2)(a) to (d) exists in respect of all or some of the matters in the court proceedings, then, in respect of those matters,
(a) the court proceedings continue;
(b) no person may commence arbitral proceedings in respect of the dispute; and
(c) if a person has brought arbitral proceedings in respect of the dispute, the arbitral proceedings are terminated and anything done in the arbitral proceedings is without effect.
(6) A party may appeal a decision of a court under this section.
COMMENCEMENT OF ARBITRAL
PROCEEDINGS
Commence- ment of proceedings
9.(1) If the parties have agreed on how arbitral proceedings are to be commenced, arbitral proceedings must be commenced in accordance with that agreement.
(2) If the parties have not agreed on how arbitral proceedings are to be commenced, a party may commence arbitral proceedings
(a) if authorized under the arbitration agreement, by delivering to the other party or parties to the agreement a notice appointing an arbitrator;
(b) by delivering to the other party or parties to the arbitration agreement a notice requesting that the other party or parties participate in the appointment of an arbitral tribunal;
(c) if the arbitration agreement authorizes a person that is not a party to the agreement to appoint an arbitrator or arbitral tribunal, by delivering to that person a notice requesting that the person exercise the power of appointment, and by delivering a copy of the notice to any other party; or
(d) by delivering to the other party or parties to the arbitration agreement a notice demanding arbitration.
(3) A person that receives a notice under subsection (2) may deliver to the party that commenced the arbitral proceedings a written request for a concise description of the matter in dispute, unless such a description is already included with the notice.
(4) A party that receives a request for a description under subsection (3) shall comply with the request not more than 10 days after receipt of the request.
(5) An arbitral tribunal may extend the time period referred to in subsection (4) before or after the expiry of that period.
(6) A party’s failure to comply with subsection (4) does not render a notice delivered under subsection (2) ineffective, but an arbitral tribunal may stay the arbitral proceedings until the party complies with the request made under subsection (3).
Agreement to consolidate
10.(1) If the parties to two or more arbitral proceedings agree to consolidate those proceedings, and a dispute arises in respect of the consolidation, any party 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) Subject to subsection (4), if the parties have agreed to consolidate the proceedings but have not agreed, by adopting procedural rules or otherwise, to either of the following matters, the Supreme Court may, on application under subsection (1), make an order deciding either or both of those matters:
(a) the designation of parties as claimants or respondents or a method for making those designations;
(b) the method for determining the composition of the arbitral tribunal.
(4) If the arbitral proceedings being consolidated are under different arbitration agreements, no order for consolidation may be made 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 within the Northwest Territories for the consolidated proceedings; and
(b) to the same procedural rules or a method for determining a single set of procedural rules for the conduct of the consolidated proceedings.
(5) In deciding an application for consolidation, the Supreme Court may have regard to any circumstance that 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.
(6) A decision of the Supreme Court under this section may not be appealed.
Time limit in agreement
11.(1) Subsection (2) applies to an arbitration agreement that provides that a claim to which the agreement applies is barred unless one of the following occurs within a time limit specified in the agreement or otherwise:
(a) notice to appoint an arbitrator is delivered;
(b) an arbitrator is appointed;
(c) any other step to commence the arbitral proceedings is taken.
(2) The Supreme Court may, on application, extend the time limit set out in the arbitration agreement if it considers that undue hardship would otherwise result.
(3) An application under subsection (1) must be brought without undue delay.
(4) A decision of the Supreme Court under this section may not be appealed.
Limitation period
12.(1) The law with respect to limitation periods for commencing court proceedings applies to commencing arbitral proceedings.
(2) Subject to subsection 11(1), if a party alleges that a claim to which an arbitration agreement applies is barred for failure to commence arbitral proceedings within the time limit specified in the agreement or otherwise or within the applicable limitation period, the arbitral proceedings continue and the arbitral tribunal shall determine whether the claim is barred.
Commence- ment of proceedings when stay ordered
13.(1) If court proceedings are stayed under section 8 and the claim that had been the subject of the court proceedings is made in arbitral proceedings not more than 30 days after the court proceedings are stayed, the limitation period applicable to the claim is suspended from the date the claim was made in the court proceedings to the date the claim is made in the arbitral proceedings.
(2) If arbitral proceedings are commenced and
(a) a claim is dismissed or the proceedings are suspended or terminated because the arbitral tribunal or a court determines that the claim may not be made in arbitral proceedings,
(b) an arbitral award is set aside by a court because it determines that the claim may not be made in arbitral proceedings, or
(c) a court refuses to enforce an arbitral award because it determines that the claim may not be made in arbitral proceedings,
and the subject claim is made in court proceedings not more than 30 days after the determination of the court or tribunal, any limitation period applicable to that claim under the Limitation of Actions Act is suspended from the date that the claim was made in the arbitral proceedings to the date the claim is made in the court proceedings.
ARBITRAL TRIBUNAL
Composition
Number of arbitrators
14.If the parties have not agreed on the number of arbitrators, an arbitral tribunal is composed of one arbitrator.
Procedure for appointing tribunal
15.(1) Subject to this section, the parties may agree on a procedure for appointing the arbitral tribunal and, if required, for the selection of a chair.
(2) Unless the parties otherwise agree, in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator, a party may apply to the Supreme Court for the appointment of the arbitrator and the Court may make the appointment.
(3) Unless the parties otherwise agree, in an arbitration with two parties and three arbitrators,
(a) each party shall appoint one arbitrator;
(b) the two appointed arbitrators shall appoint the third arbitrator; and
(c) the third arbitrator shall serve as chair or presiding arbitrator of the arbitral tribunal.
(4) If the appointment procedure in subsection (3) applies and either of the following occurs, a party may apply to the Supreme Court for the appointment of the arbitrator and the Court may make the appointment:
(a) a party fails to appoint an arbitrator within 30 days after receipt of a request to do so from the other party;
(b) the two appointed arbitrators fail to appoint the third arbitrator within 30 days of the appointment of the later-appointed arbitrator.
(5) In any other case, a party may apply to the Supreme Court for the appointment of an arbitrator that cannot be agreed to by all the parties and the Court may make the appointment.
(6) A party may apply to the Supreme Court for the appointment of any unappointed arbitrator and the Court may make the appointment where, under an appointment procedure agreed to by the parties, any of the following occurs:
(a) a party fails to act as required under that procedure;
(b) the parties or arbitrators fail to reach an agreement expected of them under that procedure;
(c) a third party fails to perform any function entrusted to the third party under that procedure.
(7) When appointing an arbitrator under this section, the Supreme Court shall consider
(a) the nature of the dispute;
(b) any qualifications required of the arbitrator by the agreement of the parties; and
(c) any other considerations that are likely to secure the appointment of an independent and impartial arbitrator.
(8) A decision of the Supreme Court under this section may not be appealed.
Removal and Replacement of Arbitrator
No revocation
16.Subject to sections 18 to 21, a party may not revoke the appointment of an arbitrator, unless all other parties to the proceedings consent.
Independence
17.(1) Unless otherwise agreed by the parties, an arbitrator shall be independent of the parties.
(2) An arbitrator shall be impartial and act impartially.
(3) If a person is approached in connection with the person’s possible appointment as an arbitrator, the person shall, without delay, disclose any circumstances likely to give rise to justifiable doubts as to the person’s independence or impartiality.
(4) An arbitrator, from the time of their appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties any circumstances referred to in subsection (3).
Grounds for challenge
18.(1) A party may challenge the appointment of an arbitrator only if
(a) subject to an agreement described in subsection 17(1), circumstances exist that give rise to justifiable doubts as to the arbitrator’s independence;
(b) circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality; or
(c) the arbitrator does not possess the qualifications agreed to by the parties.
(2) A party may challenge an arbitrator appointed by that party, or in whose appointment the party participated, only for reasons the party becomes aware of after the appointment has been made.
Challenge procedure
19.(1) Subject to subsection (4), the parties may agree on a procedure for challenging an arbitrator.
(2) If the parties have not agreed on a procedure for challenging an arbitrator, a party that intends to challenge an arbitrator shall, within 15 days after becoming aware of the constitution of the arbitral tribunal or of any circumstance referred to in subsection 18(1), send a written statement of the reasons for the challenge to the tribunal.
(3) Unless the arbitrator challenged under subsection (2) withdraws from office or the other parties agree to the challenge, the arbitral tribunal shall decide on the challenge.
(4) If a challenge under any procedure agreed to by the parties or under the procedure referred to in subsection (2) is not successful, the challenging party may, within 30 days after receiving notice of the decision rejecting the challenge, apply to the Supreme Court to decide on the challenge.
(5) A decision of the Supreme Court under subsection (4) may not be appealed.
(6) While an application under subsection (4) is pending, the arbitral tribunal, including the challenged arbitrator, may, unless the Supreme Court orders otherwise, continue the arbitral proceedings and make an arbitral award.
Failure or impossibility
20.(1) The mandate of an arbitrator terminates if
(a) the arbitrator becomes, in law or in fact, unable to perform their 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) On application by a party, the Supreme Court may terminate the mandate of an arbitrator on a ground referred to in paragraph (1)(a).
(3) A decision of the Supreme Court under subsection (2) may not be appealed.
(4) If, under this section or subsection 19(3), an arbitrator withdraws from office or the parties agree 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 subsection 18(1).
Appointment of arbitrator terminates
21.(1) In addition to the circumstances referred to in sections 18 and 20, the mandate of an arbitrator terminates
(a) if the arbitrator withdraws from office for any reason; or
(b) by or in accordance with the agreement of the parties to the arbitral proceedings.
(2) If the mandate of an arbitrator terminates, a substitute arbitrator must be appointed according to the rules applied to the appointment of the arbitrator being replaced.
(3) Unless otherwise agreed by the parties, the reconstituted arbitral tribunal may determine whether any steps taken or hearings held before the replacement of an arbitrator under this section should be repeated.
(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.
ARBITRAL PROCEEDINGS
Duties of Arbitral
Tribunal and Parties
General duties of tribunal
22.An arbitral tribunal shall give each party a reasonable opportunity to present its case and to answer any case presented against it.
General duties of parties
23.A party shall participate in an arbitral proceeding efficiently and in good faith, in accordance with the agreement of the parties and the orders and directions of the arbitral tribunal.
Jurisdiction of Arbitral Tribunal
Tribunal ruling on own jurisdiction
24.(1) An arbitral tribunal may rule on its own jurisdiction to conduct the arbitration, including whether
(a) the arbitral proceedings are in whole or in part in respect of a matter that is not the subject of an arbitration agreement;
(b) a person against which the arbitration agreement is sought to be enforced entered into the arbitration agreement while under a legal incapacity;
(c) the arbitration agreement does not exist or is void or unenforceable; or
(d) the dispute cannot be the subject of arbitration under the laws of the Northwest Territories.
(2) For the purpose of a ruling under subsection (1),
(a) an arbitration agreement that 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, as a matter of law, the invalidity of the arbitration agreement.
(3) A person that has an objection to the jurisdiction of the arbitral tribunal shall state the objection as soon as is practicable after the matter alleged to be beyond the tribunal’s jurisdiction arises during the arbitral proceedings.
(4) An arbitral tribunal may decide an objection to jurisdiction
(a) in a partial arbitral award issued before deciding other matters in dispute; or
(b) as part of the final arbitral award.
Application to Supreme Court
25.(1) A party may apply to the Supreme Court to set aside a partial arbitral award issued under paragraph 24(4)(a).
(2) An application under subsection (1) may not be made more than 30 days after the applicant receives the partial arbitral award.
(3) If the Supreme Court determines that the decision of the arbitral tribunal with respect to jurisdiction is not correct, the decision of the Supreme Court may be further appealed to the Court of Appeal with leave of that Court.
(4) An application under subsection (1) or an appeal under subsection (3) does not act as a stay of the arbitral proceedings.
(5) A final decision under subsections (1) and (3) is, unless it states otherwise, final and binding for all purposes, including for the purposes of an application to set aside an arbitral award under section 60, an appeal or application for leave to appeal an arbitral award under section 61 or an application to enforce an arbitral award under section 64.
(6) For greater certainty, subsection (5) does not prevent a party from relying on an objection under section 60, 61 or 64 if
(a) a party objects to the jurisdiction of an arbitral tribunal under subsection 24(3);
(b) the arbitral tribunal decides against the objection by a partial arbitral award under paragraph 24(4)(a); and
(c) the party does not apply to the Supreme Court under this section.
Representation and Applicable Law
Legal or other representation
26.A party may appear or act before an arbitral tribunal in person or, subject to the Legal Profession Act, may be represented by another person.
Applicable law designated by parties
27.(1) The law applicable to the substance of a dispute is the law designated by the parties.
(2) If the parties have not designated the law applicable to the substance of a dispute, the arbitral tribunal may choose the applicable law.
(3) An arbitral tribunal shall decide the substance of a dispute in accordance with the applicable law, including any equitable rights or defences available under that law.
(4) An arbitral tribunal may grant relief or remedies under the applicable law, including orders of specific performance, injunctions, declarations or other equitable remedies available under that law.
Conflict of laws
28.A designation by the parties of the law of a jurisdiction refers to the jurisdiction’s substantive law and not to its conflict of laws rules, unless the parties expressly state that the designation includes the conflict of laws rules.
Application of agreed standards
29.Notwithstanding section 27, if the parties agree, an arbitral tribunal may resolve a dispute ex aequo et bono, as amiable compositeur or by applying some other standard.
Powers of Arbitral Tribunal in Respect of
Arbitral Proceedings
Tribunal may decide evidentiary matters
30.(1) An arbitral tribunal may decide all evidentiary matters, including the admissibility, relevance, materiality and weight of any evidence, and may draw such inferences as the circumstances justify.
(2) Unless otherwise agreed by the parties, the arbitral tribunal is not required to apply the law of evidence, other than the law of privilege.
Tribunal may issue subpoena or request assistance
31.(1) If, on application by a party or on its own initiative, an arbitral tribunal determines that a person, other than a party, should give evidence or produce records, the tribunal may
(a) issue a subpoena to a person within the Northwest Territories requiring the person to give evidence or produce for inspection records in the person’s possession or control; or
(b) request a court of competent jurisdiction to assist the tribunal by requiring a person within or outside of the Northwest Territories to give evidence or produce for inspection records in the person’s possession or control.
(2) A subpoena issued under paragraph (1)(a) must set out, and a request made under paragraph (1)(b) must propose, the following, as applicable:
(a) how, where and when the person is to give evidence;
(b) the records the person is to produce;
(c) how, where and when the records are to be produced and copied;
(d) conditions for the payment of the expenses of the person named in the subpoena or request.
(3) A subpoena issued under paragraph (1)(a) has the same effect as if it were issued in court proceedings.
(4) A subpoena issued under paragraph (1)(a) may be set aside on application by the person named in the subpoena to the arbitral tribunal or to the Supreme Court.
(5) A party may apply to the Supreme Court for an order providing the assistance described in a request made under paragraph (1)(b).
(6) If an application is brought to the Supreme Court under subsection (5), the Court shall, after requiring such notice to the person named in the request as it finds appropriate, and if satisfied that the conditions proposed are reasonable,
(a) make an order that the person attend to give evidence or produce records as described in the request, if the person named in the request is within the Northwest Territories; or
(b) make a request for assistance to another court of competent jurisdiction, if the person named in the request is not within the Northwest Territories.
(7) Subsection (8) applies to arbitral proceedings if
(a) the place of arbitration is within a province or another territory;
(b) the arbitration is not considered to be an international arbitration under the laws of the place of arbitration; and
(c) the arbitral tribunal has issued a request substantially conforming to the requirements of a request under paragraph (1)(b).
(8) A party to arbitral proceedings to which this subsection applies may apply to the Supreme Court for an order providing the assistance described in the request referred to in paragraph (7)(c), and the request must be enforced in the manner and to the extent provided under the Interprovincial Subpoenas Act as if it were a subpoena issued by a court of the place of arbitration.
(9) A person must not be compelled by an order under this section, in respect of arbitral proceedings, to give evidence or produce for inspection records in the person’s possession or control that the person may not be compelled to give or produce in court proceedings.
(10) A decision of the Supreme Court under this section may not be appealed.
Oral hearings
32.(1) Unless otherwise agreed by the parties, an arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the arbitral proceedings are to be conducted on the basis of documents and other written materials.
(2) Unless the parties have agreed that no oral hearings are to be held, an arbitral tribunal shall, on request of a party, hold oral hearings at an appropriate stage of the arbitral proceedings.
(3) An arbitral tribunal shall give the parties sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purpose of the inspection of records, goods or other property.
(4) All statements, documents and other information supplied to, or applications made to, the arbitral tribunal by one party must be communicated to the other party or parties, and any expert report or evidentiary document on which the tribunal may rely in making its decision must be communicated to the parties.
Hearing location
33.(1) Except as provided in this section, an in-person hearing to receive oral evidence or oral submissions must take place
(a) at a location agreed to by the parties; or
(b) if the parties have not agreed to a location, at a location determined by the arbitral tribunal.
(2) An arbitral tribunal may receive oral evidence or oral submissions at any location using video or telephone-conferencing or other technology.
(3) An arbitral tribunal may meet wherever it considers appropriate for consultation among its members.
(4) An arbitral tribunal may conduct an inspection of records, goods or other property or receive evidence of a witness at any location.
Procedural matters
34.(1) Subject to this Act and any agreement of the parties, an arbitral tribunal may
(a) administer an oath or affirmation; and
(b) establish procedures and make procedural orders for the conduct of the arbitral proceedings.
(2) For greater certainty, and without limiting paragraph (1)(b), an arbitral tribunal may make orders
(a) respecting statements of position or pleadings, including when they should be delivered, their form and content, and whether amendments are allowed;
(b) requiring security for the tribunal’s fees and expenses;
(c) requiring a party to provide security for costs that may be incurred by another party;
(d) respecting the determination of certain matters in dispute before other matters in dispute;
(e) giving directions for the preservation of evidence;
(f) requiring, subject to privilege, a party to produce records or information;
(g) establishing protocols for searching for and producing electronically stored records, and allocating the costs of implementing those protocols;
(h) giving directions in respect of any property which is the subject of the arbitral proceedings or as to which any question arises in the proceedings, and which is owned by or in the possession of a party, for the purposes of
(i) the inspection, photographing, preservation, custody or detention of the property by the tribunal, an expert or a party, or
(ii) taking samples from, or making observations of any test or experiment conducted upon, the property;
(i) respecting the form in which evidence and argument are presented;
(j) respecting the confidentiality of the arbitral proceedings and providing for sanctions against parties for failure to observe any confidentiality requirements;
(k) respecting the use of video or telephone- conferencing or other technology to enable the examination of witnesses who are not physically present at an evidentiary hearing;
(l) allocating hearing time between the parties;
(m) respecting the exclusion of witnesses or potential witnesses from any part of an oral evidentiary hearing;
(n) respecting the examination of witnesses on oath or affirmation;
(o) respecting the language or languages to be used in an arbitral proceeding, whether translations of any records are to be supplied, and allocating the costs of interpreting or translating evidence; and
(p) varying a procedural order, including by shortening or extending a time limit established by the order, before or after the time limit has expired.
Definitions
35.(1) In this section,
"claim" means
(a) with respect to a party that commenced arbitral proceedings, the matters put in dispute by that party, and
(b) with respect to a party that brings a counterclaim in arbitral proceedings, the matters put in dispute by the counterclaim; (demande)
"procedural time limit" means a time limit set by enactment, agreement of the parties or order of the arbitral tribunal for taking a procedural step, other than a time limit for the commencement of arbitral proceedings. (délai de procédure)
(2) If, after commencement of arbitral proceedings, a party that commenced the proceedings or who brings a counterclaim in the proceedings fails to comply with a procedural time limit, the arbitral tribunal may
(a) terminate the proceedings in respect of the party’s claim; or
(b) suspend the proceedings in respect of the party’s claim, pending fulfilment of conditions.
(3) If a party fails to comply with a procedural time limit, the arbitral tribunal may continue the arbitral proceedings and may make an order it considers appropriate, including an order that precludes the party from taking a procedural step.
(4) If, without showing sufficient cause, a party fails to appear at an oral hearing or produce documentary evidence, the arbitral tribunal may continue the arbitral proceedings and may make an arbitral award on the evidence before it.
(5) Unless the arbitral tribunal determines otherwise at the time of termination or suspension, an arbitral award made before termination or suspension of arbitral proceedings under this section remains valid and enforceable.
Tribunal- appointed experts
36.(1) Unless otherwise agreed by the parties, an arbitral tribunal may, after consultation with the parties, appoint an expert to report to the tribunal and the parties on an issue.
(2) The arbitral tribunal may order a party to deliver to the expert relevant information or to produce or provide access to relevant records, goods or other property for inspection.
(3) The arbitral tribunal may, after the expert has delivered the expert’s report to the tribunal, order the expert to participate in a hearing at which the parties may question the expert on the report and present evidence on issues arising from the report.
(4) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination, all documents, goods or other property in the expert’s possession that had been provided to the expert in order to prepare the expert’s report.
(5) The costs of an expert appointed under this section shall be borne by the parties as directed by the arbitral tribunal.
Duty of expert
37.(1) In giving an opinion to an arbitral tribunal, an expert appointed by one or more of the parties or by the tribunal has a duty to assist the arbitral tribunal and is not to be an advocate for any party.
(2) If an expert is appointed by one or more of the parties or by the arbitral tribunal, the expert shall, in any report the expert prepares, certify that the expert
(a) is, except as disclosed in the report, independent of the parties;
(b) is aware of the duty referred to in subsection (1);
(c) has made the report in conformity with that duty; and
(d) will, if called on to give oral or written testimony, give that testimony in conformity with that duty.
INTERIM MEASURES AND
PRELIMINARY ORDERS
Tribunal may grant interim measure
38.Unless otherwise agreed by the parties, an arbitral tribunal may, at the request of a party, grant an interim measure.
Preliminary orders
39.(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) An arbitral tribunal may grant a preliminary order if the tribunal considers that prior disclosure of the request for the interim measure to the party against which it is directed risks frustrating the purpose of the interim measure.
Notice to parties
40.(1) As soon as is practicable after an arbitral tribunal makes a determination in respect of an application for a preliminary order, the tribunal shall give notice to all the parties of
(a) the request for the interim measure;
(b) the application for the preliminary order;
(c) the preliminary order, if any; and
(d) all other communications, including the content of any oral communication, between any party and the tribunal in respect of a matter referred to in paragraph (a), (b) or (c).
(2) The arbitral tribunal shall give a party against which a preliminary order is directed an opportunity to present the party’s case at as soon as is practicable.
(3) The arbitral tribunal shall 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 which 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.
Modification, suspension or termination
41.An arbitral tribunal may modify, suspend or terminate an interim measure or a preliminary order it has granted,
(a) on application of a party; or
(b) in exceptional circumstances and with prior notice to the parties, on the tribunal’s own initiative.
Security for interim measure
42.(1) An arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.
(2) An arbitral tribunal shall require a party applying for a preliminary order to provide security in connection with the order, unless the tribunal is satisfied that security is inappropriate or unnecessary.
Material change: interim measure
43.(1) An arbitral tribunal may require any party to promptly disclose any material change in the circumstances on the basis of which an interim measure was requested or granted.
(2) A party applying for a preliminary order shall disclose to the arbitral tribunal all circumstances that are likely to be relevant to the tribunal’s determination of whether to grant or maintain the order.
(3) The obligation under subsection (2) continues until the party against which the preliminary order has been requested has had an opportunity to present its case.
(4) After the party against which a preliminary order has been requested has had an opportunity to present its case, the arbitral tribunal may require any party to promptly disclose any material change in the circumstances on the basis of which the preliminary order was requested or granted.
Costs and damages
44.(1) If an arbitral tribunal determines that an interim measure or preliminary order should not have been granted, the party that requested the measure or applied for the order is liable for any costs and damages caused by the measure or order.
(2) An arbitral tribunal may award the costs and damages referred to in subsection (1) at any time during the arbitral proceedings.
Enforcement of interim measures
45.(1) Subject to section 46, an interim measure issued by an arbitral tribunal must, unless otherwise provided by the arbitral tribunal, be enforced on application to the Supreme Court.
(2) A party that is seeking or has obtained enforcement of an interim measure shall promptly inform the Supreme Court of any modification, suspension or termination of that interim measure.
(3) The Supreme Court may order an applicant under subsection (1) to provide security if
(a) the arbitral tribunal has not already made a determination with respect to security; or
(b) security is necessary to protect the rights of third parties.
(4) A party may appeal a decision of the Supreme Court under this section.
Grounds for refusing enforcement
46.(1) The Supreme Court may refuse to enforce an interim measure only if
(a) any of the circumstances described in subsection 60(1) apply;
(b) the party seeking the enforcement of the measure has not complied with a condition imposed by the arbitral tribunal; or
(c) an application is pending before the arbitral tribunal to cancel, suspend or modify the interim measure.
(2) A determination made by the Supreme Court on a ground referred to in subsection (1) is effective only for the purposes of the application to enforce the interim measure.
(3) The Supreme Court may not, in making a determination on a ground referred to in subsection (1), undertake a review of the substance of the interim measure.
Supreme Court interim measures
47.(1) The Supreme Court has the same powers to issue an interim measure in respect of arbitral proceedings as it does in respect of court proceedings.
(2) When requested to grant an interim measure, the Supreme Court may, if it considers it appropriate, refer the request to the arbitral tribunal hearing the dispute.
(3) It is not incompatible with an arbitration agreement for a party to request from the Supreme Court, before or during arbitral proceedings, an interim measure of protection and for the Court to grant that measure.
(4) A party affected by an order of the Supreme Court under subsection (1) or section 45 may apply to the Court to vary or set aside the order on the grounds of a material change in the circumstances that formed the basis of the order.
ARBITRAL AWARDS AND TERMINATION OF
ARBITRAL PROCEEDINGS
Majority decision
48.(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 the tribunal’s members.
(2) Notwithstanding 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.
(3) Unless otherwise agreed by the parties, if there is no majority decision on any matter to be decided in an arbitration, the decision of the chair or presiding arbitrator of the arbitral tribunal is the decision on that matter.
Settlement, mediation, conciliation
49.(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 tribunal may use mediation, conciliation or other procedures at any time during arbitral proceedings to encourage settlement.
(2) An arbitrator may not be challenged or removed because the arbitral tribunal participated in a process under subsection (1).
(3) For greater certainty, subsection (2) applies if the arbitration process continues after or concurrently with a process under subsection (1).
(4) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if the parties request it and the tribunal does not object, record the settlement in the form of an arbitral award on agreed terms.
(5) An arbitral award on agreed terms must be made in accordance with section 50 and must state that it is an arbitral award.
(6) An arbitral award on agreed terms has the same status and effect as any other arbitral award on the substance of the dispute.
Form of arbitral award
50.(1) An arbitral award must be in writing and must be delivered to the parties.
(2) The arbitral tribunal shall, on the request of a party, deliver an original signed or certified copy of the arbitral award to each party.
(3) An arbitral tribunal shall provide reasons for an arbitral award, unless
(a) the parties to the arbitral proceedings have agreed that no reasons are to be provided; or
(b) the award is an arbitral award on agreed terms under subsection 49(4).
(4) An arbitral award must state the place of arbitration and the date on which the arbitral award is made.
(5) A failure to comply with subsection (4) is a clerical error that may be corrected under section 58.
(6) All members of the arbitral tribunal shall sign an arbitral award.
(7) Notwithstanding subsection (6), a majority of the members of the arbitral tribunal may sign an arbitral award if the award includes an explanation for the omission of the signatures of the other members.
Partial arbitral award
51.An arbitral tribunal may make an arbitral award finally deciding a matter in dispute, while retaining jurisdiction to decide another matter in dispute.
When costs award may be made
52.(1) A costs award may be made at any time during arbitral proceedings, including at the termination of the proceedings, and may be made payable at any time.
(2) 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 the following as costs:
(i) the fees and expenses of the arbitrators and expert witnesses,
(ii) legal fees and expenses,
(iii) any other expenses incurred in connection with the arbitral proceedings;
(b) specify the following:
(i) the party entitled to costs,
(ii) the party that must pay the costs,
(iii) the amount of costs or the method of determining that amount,
(iv) the manner in which the costs must be paid;
(c) determine the amount of a costs award by reference to actual reasonable legal fees, expenses and witness fees; and
(d) summarily determine the amount of costs.
(3) If the arbitral tribunal finds that the conduct of a party unnecessarily increased another party’s costs, the tribunal may make a costs award requiring the party to pay to the other party an amount that the tribunal considers to be a reasonable estimate of the increased costs.
(4) If a party makes an offer to another party to settle the dispute or part of the dispute and the offer is not accepted, the arbitral tribunal may take that fact into account when awarding costs of the arbitration.
(5) The content of an offer to settle the dispute or part of the dispute must not be communicated to an arbitral tribunal until the tribunal has made a final arbitral award determining all aspects of the dispute, other than costs.
Pre-award interest
53.(1) Unless otherwise agreed by the parties, an arbitral tribunal may award simple or compound interest for the time period and at the rate that the tribunal considers appropriate as follows:
(a) on the whole or part of any amount awarded by the tribunal, in respect of any period up to the date of the arbitral award;
(b) on the whole or part of any amount claimed in the arbitration and outstanding at the commencement of the arbitral proceedings but paid before the arbitral award was made, in respect of any period before the date of payment.
(2) Unless otherwise agreed by the parties, an arbitral tribunal may award simple or compound interest from the date of the arbitral award, or any later date, until payment, at such rates as the tribunal considers appropriate, on the outstanding amount of any arbitral award, including any interest awards under subsection (1) and any costs awards.
Power to withhold arbitral award in case of non-payment
54.(1) Notwithstanding section 50 and unless the Supreme Court orders otherwise, an arbitral tribunal may withhold an arbitral award from the parties if it has not received full payment of its fees and expenses.
(2) A time limit for delivering the arbitral award is extended until security is provided for an amount claimed under subsection (1).
(3) If the arbitral tribunal fails or refuses to deliver an arbitral award, a party may, on notice to the other parties and the tribunal, apply to the Supreme Court for one or more of the following:
(a) an order requiring the tribunal to deliver the arbitral award, on the payment into court of all or part of the fees and expenses demanded;
(b) a summary determination of the amount of the fees and expenses payable to the tribunal under subsection 57(2);
(c) an order requiring that the fees and expenses determined under paragraph (b) be paid out of the money paid into court;
(d) directions as to how the balance of the money paid into court is to be paid out.
(4) A decision of the Supreme Court under this section may not be appealed.
Application for extension of time
55.(1) An arbitral tribunal or a party may apply to the Supreme Court for an order extending the time within which the tribunal is required to make an arbitral award.
(2) The Supreme Court shall make the order if satisfied that a substantial injustice would otherwise be done.
(3) An order under subsection (2) may be made before or after the expiry of the time within which the arbitral tribunal is required to make the arbitral award.
(4) A decision of the Supreme Court under this section may not be appealed.
Binding nature of arbitral award
56.An arbitral award is final and binding on all the parties to the award.
Arbitrator fees and expenses
57.(1) The fees and expenses payable to an arbitrator must be
(a) in accordance with the agreement of the parties and the arbitrator; or
(b) in the absence of an agreement of the parties and the arbitrator, set at the sum of
(i) the fair value of the services performed, and
(ii) the necessary and reasonable expenses actually paid or incurred by the arbitrator.
(2) Unless otherwise agreed by the parties and the arbitrator, a party or an arbitrator may apply to the Supreme Court for a summary determination of the fees and expenses payable if
(a) the party alleges the fees and expenses paid to or demanded by the arbitrator exceed the amount owing; or
(b) the arbitrator alleges the party failed to pay fees and expenses owed.
(3) An application under subsection (2) must be made no later than 60 days after the earlier of the following, as applicable:
(a) the date on which payment was demanded;
(b) the date on which payment was made.
(4) If, within 14 days after the making of an order under subsection (2), a party fails or refuses to pay the fees or expenses found to be payable, or an arbitrator fails or refuses to reimburse fees or expenses found to be excessive, the Supreme Court may enter judgment for the unpaid amount.
(5) A decision of the Supreme Court under this section may not be appealed.
Correction or interpretation
58.(1) Within 30 days after receipt of an arbitral award, unless another period of time has been agreed to by the parties,
(a) a party may request that the arbitral tribunal correct in the arbitral award any computation, clerical or typographical errors or any other errors of a similar nature; and
(b) a party may, on notice to the other parties, request that the arbitral tribunal give an interpretation of a specific point or part of the arbitral award.
(2) If the arbitral tribunal considers a request made under subsection (1) to be justified, it shall make the correction or give the interpretation within 30 days after receiving the request, and the interpretation forms part of the arbitral award.
(3) The arbitral tribunal may correct, on its own initiative, any type of error described in paragraph (1)(a), 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 an arbitral award, that the arbitral tribunal make an additional arbitral award in respect of a claim, including a claim for interest or costs, presented in the arbitral proceedings but
(a) not dealt with in the arbitral award; and
(b) concerning which the tribunal did not expressly reserve its jurisdiction.
(5) If the arbitral tribunal considers a request made under subsection (4) to be justified, it shall make the additional arbitral award within 60 days.
(6) The arbitral tribunal may, if necessary, extend the period of time within which it must make a correction, give an interpretation or make an additional arbitral award under subsection (2) or (5).
(7) Section 50 applies to a correction or interpretation of an arbitral award or to an additional arbitral award made under this section.
Termination
59.(1) Arbitral proceedings are terminated by the final arbitral award or by an order of the arbitral tribunal under subsection (2).
(2) The arbitral tribunal shall issue an order for termination of the arbitral proceedings if any of the following occurs:
(a) the claimant withdraws the claim, unless the respondent objects to the order and the 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;
(c) the tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible;
(d) the tribunal terminates the proceedings under paragraph 35(2)(a).
(3) Subject to this Act, the arbitral tribunal’s mandate terminates with the termination of the arbitral proceedings.
RECOURSE AGAINST AND ENFORCEMENT OF ARBITRAL AWARDS
Application to set aside
60.(1) A party may apply to the Supreme Court to set aside an arbitral award only on one or more of the following grounds:
(a) a person entered into the arbitration agreement while under a legal incapacity;
(b) the arbitration agreement is void, inoperative or incapable of being performed;
(c) the arbitral award deals with a dispute not falling within the terms of the arbitration agreement or contains a decision on a matter that is beyond the scope of the arbitration agreement;
(d) the composition of the arbitral tribunal did not accord with the arbitration agreement or this Act;
(e) the dispute is not capable of being the subject of arbitration under the laws of the Northwest Territories;
(f) the applicant was not given proper notice of the arbitration or the appointment of an arbitrator;
(g) there are justifiable doubts as to an arbitrator’s independence or impartiality;
(h) the applicant was not given a reasonable opportunity to present its case or to answer the case presented against it;
(i) the arbitral award was the result of fraud or corruption by a member of the arbitral tribunal or was obtained by fraudulent behaviour by a party or its representative in connection with the conduct of the arbitral proceedings.
(2) If the Supreme Court finds that the grounds described in paragraph (1)(c) or (e) apply in respect of only part of the subject matter of the arbitral award, the Court may set aside part of the arbitral award.
(3) The Supreme Court may not set aside an arbitral award on grounds described in paragraph (1)(g) if, before the award was made,
(a) the applicant was aware of the circumstances it relies upon in its application to set aside the arbitral award and failed to follow the applicable procedure required by the arbitration agreement or this Act for seeking the removal of the arbitrator; or
(b) the Court determined that substantially the same circumstances as are relied upon to set aside the arbitral award were not sufficient to justify the removal of the arbitrator.
(4) The Supreme Court may not set aside an arbitral award if the applicant is deemed under section 4 to have waived their right to object on the grounds on which the applicant relies.
(5) A party may appeal a decision of the Supreme Court under this section.
No appeal except as provided
61.(1) There is no appeal to a court from an arbitral award other than as provided under this section.
(2) A party may appeal to the Court of Appeal on any question of law arising out of an arbitral award if
(a) all the parties to the arbitration consent; or
(b) subject to subsection (3), a justice of that Court grants leave to appeal under subsection (4).
(3) A party may seek leave to appeal to the Court of Appeal on any question of law arising out of an arbitral award unless the arbitration agreement expressly states that the parties to the agreement may not appeal any question of law arising out of an arbitral award.
(4) The Court of Appeal may, on an application for leave under subsection (3), grant leave if it determines that
(a) the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice;
(b) the point of law is of importance to some class or body of persons of which the applicant is a member; or
(c) the point of law is of general or public importance.
(5) If the Court of Appeal grants leave to appeal under subsection (4), it may attach to the order granting leave conditions that it considers just.
(6) The Court of Appeal may, on appeal,
(a) confirm, vary or set aside the arbitral award; or
(b) remit the arbitral award to the arbitral tribunal with directions.
Time limits
62.(1) Subject to subsection (2), an application to set aside an arbitral award under section 60, an appeal under paragraph 61(2)(a) or an application for leave to appeal under subsection 61(3) must be brought no more than 30 days after the date on which the appellant or applicant receives the arbitral award, correction, interpretation or additional arbitral award on which the appeal or application is based.
(2) If the applicant alleges corruption or fraud, an application to set aside the arbitral award under section 60 must be brought within 30 days after the date on which the applicant first knew or reasonably ought to have known of the circumstances relied upon to set aside the award.
Appeal of decision of Supreme Court
63.If this Act provides for an appeal from a decision of the Supreme Court, the appeal may be made to the Court of Appeal, with leave of that Court.
Party may apply for enforcement
64.(1) A party may apply to the Supreme Court to enforce an arbitral award made in arbitral proceedings with a place of arbitration in Canada.
(2) Unless the Supreme Court orders otherwise, an application under subsection (1) must be made on notice to the person against which enforcement is sought, in accordance with the Rules of the Supreme Court of the Northwest Territories.
(3) An application under subsection (1) must be accompanied by an original or certified copy of the arbitral award and evidence as to whether
(a) the time limit for commencing an appeal or an application to set aside the arbitral award at the place of arbitration has elapsed;
(b) an appeal or application to set aside the arbitral award is pending;
(c) a stay of enforcement of the arbitral award has been issued;
(d) the arbitral award has been set aside; or
(e) the arbitral award has been remitted to the arbitral tribunal.
(4) The Supreme Court shall enforce an arbitral award, unless
(a) the arbitral award has been set aside by a court of competent jurisdiction;
(b) the dispute is not capable of being the subject of arbitration under the laws of the Northwest Territories;
(c) the Court does not have the jurisdiction to grant the relief sought;
(d) the time limit for commencing an appeal or an application to set aside the arbitral award under the laws of the place of arbitration has not yet elapsed;
(e) an appeal or application to set aside the arbitral award is pending, or a stay of enforcement of the award has been issued, at the place of arbitration; or
(f) the arbitral award has been remitted to the arbitral tribunal.
(5) If paragraph (4)(d) or (e) applies, the Supreme Court may order that enforcement of the arbitral award is stayed for a time and on conditions, including conditions as to the deposit of security.
(6) A Supreme Court decision to enforce an arbitral award has the same effect as a court judgment granting the remedy described in the award.
(7) A party may appeal a decision of the Supreme Court under this section.
GENERAL
Limitation of liability
65.No action or proceeding may be brought against an arbitrator for anything done or not done by the arbitrator in good faith in the exercise of the arbitrator’s powers or the performance of the arbitrator’s duties under an enactment governing an arbitration or under an arbitration agreement.
Privacy
66.(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 shall 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) authorized by agreement of the parties;
(c) 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
(d) authorized by a court of competent jurisdiction.
Delivery in accordance with agreement
67.(1) If the parties have agreed on a method for delivering a record, a record must be delivered in accordance with the agreement.
(2) If the parties have not agreed on a method for delivering a record, a record may be delivered to an individual by
(a) leaving it with the individual;
(b) leaving it at the individual’s last known place of business, place of residence or mailing address;
(c) sending it electronically to an address or number specified by the individual for that purpose;
(d) sending it to the individual’s last known place of business, place of residence or mailing address by registered letter or another means that provides a record of receipt; or
(e) after the arbitral tribunal has been constituted, any other method the tribunal directs.
(3) If the parties have not agreed on a method for delivering a record, a record may be delivered to a corporation or extra-territorial corporation by
(a) leaving it with an officer, director or agent of the corporation;
(b) leaving it at a place of business or at the registered office of the corporation with a person who has apparent control or management of the place;
(c) sending it electronically to an address or number specified by the corporation for that purpose;
(d) any other means provided by applicable law; or
(e) after the arbitral tribunal has been constituted, any other method the tribunal directs.
(4) If the parties have not agreed on a date on which receipt of a record is deemed to occur, then, unless the addressee establishes that the addressee, acting in good faith, did not actually receive it until a later date,
(a) a record delivered under paragraph (2)(a),
(b) or (c) or (3)(a), (b) or (c) is deemed to have been received on the date it is delivered; and
(b) a record delivered under paragraph (2)(d) or (e) or (3)(d) or (e) is deemed to have been received five days after it is delivered.
(5) If a party is satisfied that it is impractical or impossible to deliver a record in a manner described in subsection (1), (2) or (3), the party may apply to the arbitral tribunal for an order authorizing an alternative method of delivering the record.
(6) If the arbitral tribunal fails to make an order under subsection (5) within seven days after the request, the party may apply to the Supreme Court for an order authorizing an alternative method of delivering the record.
(7) An order under subsection (5) or (6) must state the date on which receipt of the record is deemed to occur.
(8) This section does not apply to the service or delivery of records in respect of court proceedings.
Death of a party
68.(1) Unless otherwise agreed by the parties, if a party dies, the personal representatives of the deceased party are bound by, and are not by the death precluded from enforcing, the terms of the arbitration agreement.
(2) Unless otherwise agreed by the parties, the authority of an arbitrator to hear and decide on the arbitration is not revoked by the death of the party that appointed the arbitrator.
(3) This section does not affect a rule of law or an enactment under which the death of a person extinguishes a right of action.
Limitation period: enforcement
69.No application for enforcement of an arbitral award may be brought more than 10 years after the following, as applicable:
(a) in the case where no appeal or application to set aside the arbitral award is brought, the date on which the time limit for appealing or setting aside the arbitral award expires;
(b) in the case where an appeal or application to set aside the arbitral award is brought, the date on which the proceedings at the place of arbitration to appeal or set aside the award conclude.
Regulations
70.The Commissioner in Executive Council may make regulations
(a) prescribing, for the purpose of paragraph 3(5)(b), agreements entered into by the Government of the Northwest Territories or the Government of Canada and the government of another jurisdiction in or outside Canada; and
(b) respecting the application of this Act to an arbitration under an agreement prescribed under paragraph (a).
TRANSITIONAL
Applicability to arbitral proceedings under agreement
71.(1) Subject to subsection (3), this Act applies to arbitral proceedings if the proceedings are commenced on or after the date this section comes into force, whenever the arbitration agreement under which the proceedings are commenced was made.
(2) This Act applies to arbitral proceedings authorized by an enactment if the proceedings are commenced on or after the date this section comes into force.
(3) Section 61 does not apply and section 27 of the Arbitration Act, RSNWT 1988, c.A-5, continues to apply, to an appeal from an arbitral award resulting from arbitral proceedings conducted under an arbitration agreement made before this section comes into force.
Reference to previous Act
72.For the purposes of arbitral proceedings to which this Act applies, a reference in an arbitration agreement to the Arbitration Act, RSNWT 1988, c.A-5, is deemed to be a reference to this Act.
Limitation period
73.Notwithstanding section 69, if an arbitral award is made before the coming into force of this section, but no application for enforcement of that award is brought before that day, a party may not bring an application for enforcement of the award after the earlier of the following:
(a) the date determined under section 69;
(b) the date on which the limitation period that applied in respect of the recognition or enforcement of the arbitral award before the coming into force of this Act would have expired.
CONSEQUENTIAL AMENDMENTS
Arbitration Act, RSNWT 1988, c.A-5
Arbitration Act, RSNWT 1988, c.A-5
74.(1) The Arbitration Act, RSNWT 1988, c.A-5 is amended by this section.
(2) The title is repealed and the following is substituted:
ARBITRATION ACT, 1988
(3) Sections 2 and 3 are repealed and the following is substituted:
Application
2.This Act applies to an arbitration under the Public Service Act or the Education Act.
Reference in Agreement
3.For the purposes of arbitral proceedings to which this Act applies, a reference in an arbitration agreement to the "Arbitration Act" or "Arbitration Act, RSNWT 1988, c.A-5" is deemed to be a reference to this Act.
Community Planning and
Development Act
Community Planning and Development
75.(1) The Community Planning and Development Act is amended by this section.
(2) Subsection 72(2) is amended by striking out "section 11 of the Arbitration Act" and substituting "section 15 of the Arbitration Act".
(3) Subsection 73(3) is amended by striking out "section 36 of the Arbitration Act" and substituting "subsection 52(3) of the Arbitration Act".
Education Act
Act Education Act
76.Section 57 of the Education Act is amended by striking out "Arbitration Act" and substituting "Arbitration Act, 1988, RSNWT 1988, c.A-5".
International Commercial Arbitration Act
77.The International Commercial Arbitration Act is amended by adding the following after section 11:
Limitation period
11.1.(1) No application under the Convention or the International Arbitration Law for recognition or enforcement of an arbitral award may be brought more than 10 years after the following, as applicable:
(a) in the case where no application to set aside the award is brought, the date on which the time limit for setting aside the award expires;
(b) in the case where an application to set aside the award is brought, the date on which the proceedings at the place of arbitration to set aside the award conclude.
(2) Notwithstanding subsection (1), if an award is made before the coming into force of this section, but no application for recognition or enforcement of that award is brought before that day, a party may not bring an application for recognition or enforcement of the award after the earlier of the following:
(a) the date determined under subsection (1);
(b) the date on which the limitation period that applied in respect of the recognition or enforcement of the arbitral award before the coming into force of this Act would have expired.
Public Service Act
Public Service Act
78.(1) The Public Service Act is amended by this section.
(2) The following provisions are amended by striking out "Arbitration Act" and substituting "Arbitration Act, 1988, RSNWT 1988, c.A-5,":
(a) subsection 40.5(2);
(b) subsection 41.02(9).
(3) The following provisions are amended by striking out "Arbitration Act" and substituting "Arbitration Act, 1988, RSNWT 1988, c.A-5":
(a) subsection 41.02(8);
(b) section 43.
COMMENCEMENT
Coming into force
79.This Act or any provision of this Act comes into force on a day or days to be fixed by order of the Commissioner.