Canadian Judges and Investment Treaty Arbitration: A Critical Analysis of Set-Aside Proceedings

Abstract Canada is widely regarded as a pro-arbitration jurisdiction. Yet the role of domestic judges in investor-state dispute settlement remains significant, particularly in arbitrations that do not take place at the International Centre for Settlement of Investment Disputes (ICSID). Unlike ICSID, which provides a self-contained system for enforcement and annulment, investment treaty arbitration conducted under other arbitration rules are subject to judicial oversight. This article examines how Canadian judges have approached set-aside proceedings in non-ICSID cases, with a particular focus on the standard of review applied under Article 34 of the UNCITRAL Model Law on International Commercial Arbitration. The article contends that Canadian judges play a pivotal role in shaping the interface between international investment law and domestic legal principles. In this context, this article argues that the degree of deference shown by Canadian judges to investment arbitral awards should be understood not as judicial restraint per se but, rather, as respect for the distinct legal order constituted by investment treaty arbitration and the UNCITRAL Model Law — a legal order that is international in nature and grounded in a shared global understanding of review standards. Through an analysis of key judicial decisions reviewing investment awards — specifically, the North American Free Trade Agreement Chapter 11 awards, this study explores the extent to which Canadian judges have embraced an internationalist perspective. The article concludes that, while Canadian judges claim to be pro-arbitration, this does not necessarily equate to deference towards investment arbitral awards.