The Standard of Review on Appeals From Domestic Arbitral Awards Should be Open to Party Agreement

Abstract

One of arbitration’s defining features is its flexibility. Parties to an arbitration agreement enjoy broad discretion to design their dispute resolution process as they see fit. Despite the prominence of party autonomy as a cornerstone of arbitration, courts have at times placed limits on the procedural flexibility emblematic of arbitration. One such case is the Ontario Court of Appeal’s decision in Dominion, wherein the Court decided that parties to an arbitration agreement may not determine in advance which standard of review the Court shall apply on the appeal of an arbitral award. This paper argues that the limit that the Court in Dominion placed on party autonomy was unwarranted. Specifically, the Court, as other courts have done, placed an over- reliance on administrative law principles without considering arbitration law principles that, if considered, would militate in favour of according parties the ability to determine their appellate standard of review in advance.

Keywords: arbitration, standard of review, commercial arbitration, administrative law