Private Law Theory

ABSTRACT
The judicial review of arbitral awards bears an intuitive similarity to the review of administrative decisions. Despite their reluctance, Canadian courts have long used administrative law concepts and statutory interpretation to determine the standard of review when an arbitral award is challenged in court. This paper considers a novel alternative: contractual interpretation of the parties’ intended degree of susceptibility to judicial scrutiny based on their arbitration agreement.

The discussion about reviewing arbitral awards has taken on new significance due not only to the proliferation of arbitration but also to the Supreme Court’s seminal administrative law decision of Vavilov. Vavilov simplified standards of review to promote consistency and access to justice. This paper argues that applying a uniform set of public law standards does not align with the contractual nature of arbitrator’s authority and the narrow application of an arbitration between private parties. Administrative and contract law calls for different balances between maintaining legal control and respecting the non-judicial decision-maker’s authority. For international commercial arbitrations at least, existing legislative schemes have not altered this balance to require uniform standards that cannot be contracted around. Not only is contractual interpretation a more principled approach, it benefits from a body of jurisprudence that will often in practice lead to standards that make the most commercial sense. This individualizes the difficult choice between expediency and quality of justice to the circumstances of each arbitration. It also allows courts to show comity by considering foreign law as part of the contractual context.

Ivy Tengge Xu, Contractual Interpretation Of The Standard Of Review In International Commercial Arbitrations – An Alternative To Transplanting Administrative Law, Canadian Law Review volume 102 no 3 (2024). Published 18 December 2024.