International Commercial Arbitration In Canada After Uber Technologies Inc. v. Heller

Forthcoming, Arbitration International (2020)

29 Pages Posted: 9 Jul 2020 Last revised: 7 Aug 2020

See all articles by Tamar Meshel

Tamar Meshel

University of Alberta Faculty of Law

Date Written: July 8, 2020

Abstract

This article examines the Supreme Court of Canada’s judgment in Uber Technologies Inc. v. Heller from an international commercial arbitration perspective, focusing on two specific issues. The first issue is the Court’s application of a provincial domestic, rather than international, arbitration statute to Uber and Heller’s international arbitration agreement, on the ground that the agreement is not “commercial”. The article argues that this finding is not in line with international arbitration instruments and practice. The second issue is the Court’s interpretation and application of the competence-competence principle, which permits arbitral tribunals to decide their own jurisdiction. The article maintains that the Court’s approach does not offend this principle, but that the Court provides insufficient guidance to lower Canadian courts on how to implement this approach in future cases. The article concludes that the Court’s decision, while far-reaching in many respects, should not disturb the enforcement of routine international commercial arbitration agreements in Canada. The decision may have implications, however, for arbitration agreements contained in international contracts – particularly standard form contracts – that might give rise to employment disputes, such as those in the gig economy, or that contain terms that may seem to bar a party’s access to the arbitral process.

Keywords: International commercial arbitration, Canada, Competence-competence, UNCITRAL Model Law, Gig economy, Employment arbitration, Choice of law

JEL Classification: K12, K29, K39

Suggested Citation

Meshel, Tamar, International Commercial Arbitration In Canada After Uber Technologies Inc. v. Heller (July 8, 2020). Forthcoming, Arbitration International (2020), Available at SSRN: https://ssrn.com/abstract=3646573 or http://dx.doi.org/10.2139/ssrn.3646573

Tamar Meshel (Contact Author)

University of Alberta Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

HOME PAGE: http://www.ualberta.ca/law/faculty-and-research/profiles/tamar-meshel

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