A Court case formally begins when the Court “issues” a statement of claim, notice of action or notice of application. When the Court issues a claim, the Court seals it, adds a Court file number and opens a file at the Court office. The initiating document is then personally served on the defendant(s) or respondent(s).
Arbitration is started differently. For the most part, arbitration depends on the law of contract and requires an agreement to arbitrate. An arbitration agreement can be built into a contract (before a disagreement arises) or it can be agreed upon after a disagreement arises. Arbitration can also be mandated by legislation in some circumstances.
It is important to start an arbitration within the applicable limitation period, for limitation periods that apply to Court cases also apply to arbitration cases.
The starting point for determining how to commence an arbitration is to look at the contract itself. Does the contract say how to start the arbitration? Many contracts will say that arbitration starts by written notice provided in accordance with the notice provisions in the agreement.
If the agreement is silent on commencing arbitration, then one must look at the applicable arbitration legislation. In Ontario the Arbitration Act, 1991 governs domestic arbitration. To learn more abou the Arbitration Act, 1991, you can check our article titled An Overview of the Arbitration Act, 1991. Many provinces have similar legislation.
Section 23 of the Arbitration Act, 1991 states:
Commencement of arbitration
23 (1) An arbitration may be commenced in any way recognized by law, including the following:
1. A party to an arbitration agreement serves on the other parties notice to appoint or to participate in the appointment of an arbitrator under the agreement.
2. If the arbitration agreement gives a person who is not a party power to appoint an arbitrator, one party serves notice to exercise that power on the person and serves a copy of the notice on the other parties.
3. A party serves on the other parties a notice demanding arbitration under the agreement.
All options involve one of the parties serving a notice of one sort or another:
- a notice to appoint an Arbitrator,
- a notice to exercise the power to of a non-party to appoint an Arbitrator, or
- a notice demanding arbitration.
The broad language of “in any way recognized by law” also permits anyone to comply with the requirements set out in the agreement for providing such a notice.
We have prepared a user-friendly Microsoft Word template notice demanding arbitration that complies with section 23 of the Arbitration Act, 1991. Please click here for a precedent notice demanding arbitration.
With respect to service of the notice, the agreement deals with how to provide notices, which may be personally, by registered mail, courier, fax and/or possibly email (newer agreements), then a notice set out in the agreement may be served in that manner.
If the agreement does not say how to serve notice, then one must consider section 53 of the Arbitration Act, 1991, which sets out a variety of options, primarily personal service for individuals, service on an officer or director or at the place of business for a corporation. Registered mail is an alternative if personal service is not achieved. The Court can make an order for substituted service or dispensing with service.
International arbitration in Ontario is governed by the International Commercial Arbitration Act, 2017 (the “International Act“). Again, the starting point for any analysis is to look at the arbitration agreement on how to start the arbitration.
If the agreement does not clearly specify how to commence arbitration and the laws of the Province of Ontario apply, then one looks to the International Act. Pursuant to section 5 of the International Act, the Model Law on International Commercial Arbitration, adopted by the United Nations Commission in 1985, as amended in 2006 (the “Model Law“) applies.
Article 21 of the Model Law states:
Article 21. Commencement of arbitral proceedings
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.
The document starting the arbitration is a “request for arbitration”, which is another way of describing a notice for arbitration.
The request must be “received” by the respondent(s), which is another way of describing service. Service can be effected in accordance with the arbitration agreement itself, or in accordance with Article 3 of the Model Law, which includes personal service or delivery to a place of business or habitual residence. Registered mail can be used if personal service is unsuccessful. The Model Law even permits the use of “any other means which provides a record of the attempt to deliver it”.
Conclusion on How to Commence An Arbitration
In sum, to commence an arbitration, one must serve a notice in accordance with the arbitration agreement, or in the alternative in accordance with the applicable legislation for domestic or international arbitration. You can check out our precedent notice demanding arbitration here.
More on Arbitration
For more information on arbitration, please check out the following articles:
- Steps in an Arbitration
- Precedent Notice Demanding Arbitration
- Precedent Arbitration Statement of Claim and Arbitration Statement of Defence
- An Overview of the Arbitration Act, 1991
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