Reasoning in International Arbitration : The Emergent Approach in Canada

Spurred on by the adoption of the UNCITRAL Model Law and its attendant reasons requirement over three decades ago, reasoning in international arbitration has emerged as a relevant facet of Canadian arbitration law. All Canadian jurisdictions now require that arbitral tribunals provide reasons for their awards unless the parties agree otherwise, but offer nothing more in terms of particulars. This raises several questions. For instance, what constitutes an award such that a decision must be reasoned? What are the specifics of the duty to provide reasons? And what are the practical consequences of failing to give reasons or providing inadequate ones? This article examines the legal reasons requirement’s implementation and development in Canada through legislation and the resulting case law. The analysis reveals that courts are inclined to evaluate reasons purposively: reasons must not only seize the substance of the dispute and provide conclusions on the claims submitted, but also explain to the parties why the tribunal decided as it did and permit for effective judicial review. Given the experience in the domestic arbitration context, there is another related question: whether the more general approach to reasoning standards applicable to other adjudicators in Canada may also come to inform the reasoning requirement in international arbitration. Regardless of the particular contents of reasons adequacy, however, a want of reasons is not in and of itself a ground for Canadian courts to interfere with an international award. Parties must rather frame this omission within the grounds provided by applicable legislation. Furthermore, Canadian courts seized of set-aside and recognition and enforcement matters will seek to ensure the finality of awards. Case law suggests that courts will not interfere with an insufficiently reasoned award unless said defect impacts the award’s outcome or prevents its outcome from being ascertained