The New ADRIC Arbitration Rules: An Updated Approach to Commercial Arbitration in Canada – Part 1
By William G. Horton, C.Arb, Emily McMurtry, ACIArb and Lisa C. Munro, FCIArb, Q.Arb
The ADR Institute of Canada Inc. (ADRIC) will introduce new Arbitration Rules in early 2025, providing a modern framework for fair and final dispute resolution. Key features include flexibility, cooperation, customized ADRIC support, unified application for all disputes, enhanced arbitrator appointment, expedited challenge process, and strict disclosure standards. This article is Part 1 of a two-part series about the new Arbitration Rules.
I. INTRODUCTION
This is the first of two articles that will run in ADR Perspectives over consecutive issues.
The ADR Institute of Canada Inc. (“ADRIC”) will adopt new Arbitration Rules in early 2025 (the “Rules”), reflecting two years of thoughtful discussion and analysis by a committed group of arbitrators and arbitration counsel representing all regions in Canada. Their focus has been on providing a framework for arbitration as a means of resolving disputes in a full, fair and final manner using up-to-date arbitration procedures and streamlined institutional support when needed.
The Rules recognize that in some cases, legislation or jurisprudence may not allow parties in one part of Canada to agree on or adopt certain rules, for example, with respect to appeals. In addition, the substantive law applicable to a particular issue may result in a different outcome, for example, with respect to offers to settle. The Rules respect these limitations where they apply (Rules 1.3.3 and Rule 4.7.1).
Parties are free to agree in writing to vary or exclude any of the Rules except for the requirements of fairness, arbitrator independence and impartiality, arbitrator immunity, and payment of fees for requested ADRIC services (Rule 1.3.4).
Consistent with the needs and expectations of modern arbitration users, the Rules impose an obligation on parties and their counsel to cooperate with each other and with the tribunal to achieve the objectives of a just, speedy, and cost-effective determination of the proceeding on its merits, taking into account the values that distinguish arbitration from litigation (Rule 4.8) – and they expressly allow the arbitrator to consider compliance with these obligations when making a cost award (Rule 5.3.2).
By emphasizing cooperation between parties, streamlining processes, and integrating modern practices, the Rules are designed to meet the needs of contemporary arbitration users, who can confidently adopt the Rules to provide either default or bespoke dispute resolution procedures that position them to get back to business quickly.
II. HIGHLIGHTS OF THE RULES
1. Customized ADRIC Support Based on a “Menu” of Available Services
Parties are free to arbitrate without involving an institution but have the benefit of ADRIC’s assistance if and when needed, instead of going to court. By adopting the Rules, parties agree that those services will be provided exclusively by ADRIC if and when needed; but otherwise, ADRIC will not be involved. The Rules list the various services available to the parties with applicable fees.
2. Elimination of Distinction between International and Non-international Disputes
The Rules apply equally to international and non-international disputes conducted in Canada and include additional provisions such as allowing for more than one language of arbitration (Rule 4.2) and encouragement of the “evidence-first” approach common to international arbitration practice.
3. Enhanced Arbitrator Appointment Process
ADRIC’s new Arbitrator Appointment Protocol prescribes how arbitrator appointments will be made, what criteria will be applied, and by whom. An Appointment Committee has been established for this purpose, comprised of arbitrators and arbitration counsel from across Canada. The new “ADR Connect” platform includes arbitrator locations, areas of expertise, professional designations, experience and rates, and equity and inclusion considerations for each arbitrator, if any. The Committee will use the platform to make arbitrator appointments; however, anyone can access this information. The Protocol is designed to ensure the quality of arbitrator appointments, the transparency of the appointment process and the integrity of ADRIC’s role as appointing authority.
4. Expedited and Integrated Challenge Process
The Rules provide for a comprehensive and streamlined arbitrator challenge procedure. Challenges to an arbitrator processed in court can disrupt and delay an arbitration and publicize the dispute. In keeping with international standards, the Rules now provide for arbitrator challenges to be dealt with by ADRIC, not the courts, in an expedited process, with a decision generally rendered within 15 days of delivery of all evidence and submissions (Rule 3.6).
5. Conflicts Disclosure Processes and Standards
In the interests of ensuring the arbitrator is aware of the circumstances surrounding their appointment, Rule 3.3.2 requires parties to provide “Party Disclosure” before the arbitrator appointment that sets out any information reasonably known that would enable the arbitrator to assess whether circumstances exist that could give rise to justifiable doubts as to their independence or impartiality. Rule 3.3.2(c) also requires each party to update its Party Disclosure as soon as information changes or additional information becomes available (e.g. a change in party counsel or additional witnesses).
Rule 3.3.3 creates the arbitrator’s obligation to deliver the “Arbitrator Disclosure”, before accepting an appointment, disclosing “to the best of their knowledge” any circumstances that may give rise to justifiable doubts as to their independence and impartiality, as well as a declaration that they will act with independence and impartiality. Like the Party Disclosure, the arbitrator is required to update the Arbitrator Disclosure “as soon as possible” if any circumstances arise after acceptance of the appointment and before the arbitration concludes.
III. CONCLUSION, PART I
Parties can adopt the new Rules as is and without modification, or tailor them to suit their specific needs. Either way, ADRIC remains available to provide efficient administrative support, without the unnecessary process that sometimes characterizes institutional involvement. Ultimately, the Rules provide the flexibility that reflects arbitration’s raison d’être: party autonomy.
Please watch for the second article in this series, in the next edition of ADR Perspectives. We will offer additional insights into the new state-of-the-art Rules, including a sample procedural order, appeals from arbitrator decisions and awards, and more. Parties, counsel, and arbitrators are invited to reach out to any member of the Committee that drafted the Rules, provide comments on the website, or contact directly ADRIC Case Services at arb-admin@adric.ca.
William G. Horton, C.Arb, was co-chair and discussion leader of the ADRIC Committee that drafted the new Arbitration Rules. He is an independent arbitrator of Canadian and international business disputes.
Emily McMurtry, ACIArb, is a Senior Associate at Dentons Canada LLP with extensive experience as domestic and international arbitration counsel, both ad hoc and under institutional rules. She is also a roster arbitrator with the Fruit and Vegetable Dispute Resolution Corporation, writes regularly on arbitration topics, and is a coach for the University of Ottawa’s Willem C. Vis International Commercial Arbitration Moot team.
Lisa C. Munro, FCIArb and Q.Arb, is a partner/arbitrator at Lerners LLP and an arbitrator on the Arbitration Place roster. She is the Editor of Arbitration Matters, which provides summaries of newly released arbitration cases in Canada, along with commentary. She also hosts Arbitration Boot Camp; a monthly webinar series that focuses on practical commercial arbitration issues. Lisa was a member of the ADRIC Committee that drafted the new Arbitration Rules.
