In Europe of the Middle Ages, there existed an autonomous regime
of truly private international business law based upon the customs
and usages of merchants, the Law Merchant, administered in lay
tribunals. The courts and legislators usurped the jurisdiction of
the lay tribunals, and subverted the Law Merchant to municipal law.
Arbitration was similarly subverted to municipal courts and strict
legal controls. The courts continued to guard their jurisdiction
jealously into the 20th century, when nations came to realize the
inadequacy of national legal systems for international business
problems, and the desire of business to escape parochial legal
concerns and municipal courts. Canada adopted the New York
Convention and UNCITRAL Model Law in 1986, which maximize party and
arbitral autonomy and restrict court interference with arbitration.
These new laws would permit the resurrection of an autonomous
regime of international commercial dispute settlement largely
divorced from national law and court controls, if the courts
cooperate. This thesis is the first comprehensive, up-to-date
study (of which I am aware) of Canadian case law on arbitration in
the context of the history of autonomous commercial dispute
resolution from the its zenith in the Middle Ages through its
nadir, to its present attempted resurrection. This thesis shows
that the courts of Canada continue to guard their jurisdiction
jealously, finding the means in old notions and precedents to
justify their refusal to cede jurisdiction to arbitrators. The
courts have ignored the policies underlying the new laws, have
failed to apply international precedents and standards, and have
continued to apply notions and precedents from an era hostile to
arbitration.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/4270 |
| Date | 05 1900 |
| Creators | Barbour, Alan Norman |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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