Inspired by Vavilov, Made for Arbitration: Why the Appellate Standard of Review Framework Should Apply to Appeals from Arbitral Awards
Canadian Journal of Commercial Arbitration, Forthcoming
41 Pages Posted: 18 Aug 2021 Last revised: 2 Oct 2021
Date Written: July 27, 2021
Vavilov re-imagined the law of judicial review in Canada. Among its most important changes, the Court held that rights of appeal impact the standard of review a court applies on judicial review. When an issue falls within the right of appeal, the appellate standards of review will apply (correctness on questions of law and palpable and overriding error on questions of fact and mixed fact/law). This paper explores the implications of this change for the world of arbitration. It argues that where arbitration legislation provides an appeal right and the parties have not excluded appeals in their arbitration agreement, reviewing courts should give effect to the parties’ choice and apply the appellate standard of review. Put differently, parties can be assumed to understand that when they refer their matters to arbitration but provide for an appeal from the award(s), any appeal should be subject to the appellate standards of review. This conclusion is justified by one of the key principles underlying arbitration in the first place: party autonomy. The article outlines the state of the law before and after Vavilov. It then makes the argument that Vavilov’s pronouncement on the standard of review for appeals and party autonomy go hand-in-hand.
Keywords: administrative law, standard of review, arbitration
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