Download This PaperHeller v. Uber Technologies Inc.: Can Hard Cases Make Good Law?
50(4) Advocates’ Quarterly 351 (2020)
21 Pages Posted: 6 Jan 2020 Last revised: 17 Apr 2020
Date Written: November 11, 2019
Abstract
In light of the ubiquity of international commercial arbitration worldwide, most domestic jurisdictions strive to create consistency and uniformity in the interpretation and application of its fundamental principles. But what happens when such principles seemingly collide with a domestic statute, with national public policy, or with other judicial or legislative objectives in a particular case? This question is currently before the Supreme Court of Canada in Heller v. Uber Technologies Inc. The difficult facts of this case have led to a manifestly flawed decision of the Court of Appeal for Ontario, as well as to two diametrically opposed positions placed by the parties before the Supreme Court. But the Court need not end up with either of these extreme outcomes. Rather, the fundamental principles of international commercial arbitration in fact allow it to pave a middle course. This article argues that the key to doing so lies in the fundamental principle of commerciality.
Keywords: international commercial arbitration, Uber, Supreme Court of Canada, stay of proceedings, employment
JEL Classification: K10, K12, K19, K31, K33, K41
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