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The Future of International Commercial Arbitration in Canada After Uber Technologies Inc v Heller

by Tamar Meshel

August 2020

Tamar Meshel

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.

For more information please see the pre-review version of the article on SSRN, here.

 

Professor Tamar Meshel is an Assistant Professor at the University of Alberta Faculty of Law. She holds a J.D. degree from the University of British Columbia, and a B.A. (Hons) degree in political science, LL.M. and SJD degrees from the University of Toronto. Professor Meshel practiced international commercial arbitration in a national law firm in Vancouver, as Deputy Counsel at the International Court of Arbitration of the International Chamber of Commerce in Paris, France, and as legal advisor to the Jerusalem Arbitration Center in Israel and Palestine. During her doctoral studies, she was a Research Fellow with the Max Planck Institute for Procedural Law in Luxembourg, and a Schulich Fellow at the Schulich School of Law at Dalhousie University in Halifax. Professor Meshel has written extensively on various aspects of international and domestic arbitration, including commercial arbitration, investor-State arbitration, and interstate arbitration. Her latest work on arbitration in the context of mobile-based ride-sharing apps has been published or is forthcoming in Arbitration International, the University of Chicago Law Review Online, and the Virginia Law & Business Review. A complete list of her published and forthcoming work is available here: http://ssrn.com/author=1595286



Website: https://apps.ualberta.ca/directory/person/meshel

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