Borden Ladner Gervais LLP updates

Stay out of it – sophisticated parties can contract out of arbitration legislation
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • November 30 2017

The Supreme Court of Newfoundland and Labrador recently dismissed an application by the province under Sections 14 and 34(2)(a)(iii) of the Arbitration Act. The court held that the parties had legally contracted out of the act, narrowing the circumstances in which a court could set aside an arbitral award. The decision furthers the general theme of recent Canadian jurisprudence, which has emphasised party autonomy and deference to reasonable arbitral decisions.

Justin Bieber tweets and an international arbitrator listens: court refers defamation claim to arbitration
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • June 22 2017

The Quebec Superior Court recently held that a party promoter's claims of defamation and breach of contract against Justin Bieber were subject to an arbitration clause entered into between the promoter and the pop star's agent. The decision sets out the factors that Canadian courts will consider when deciding whether a sufficient agency relationship exists in order to bind a third party to an arbitration agreement.

Ontario court recognises arbitral award and confirms narrow scope of public policy defence
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • February 23 2017

The Ontario Superior Court of Justice recently issued another decision in the ongoing saga on the enforcement of arbitral awards against the Kyrgyz Republic by various arbitral creditors. Consistent with the United Nations Commission on International Trade Law Model Law and previous case law, the decision confirms that only the most egregious circumstances will warrant a refusal to recognise an arbitral award for public policy reasons.

Court of appeal gets to the right result – but for the wrong reasons
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • December 01 2016

The Ontario Court of Appeal recently confirmed a decision of the Ontario Superior Court of Justice staying an action commenced by Novatrax International Inc against a German company with which it had contracted, on the basis of a commitment to arbitrate in the contract. The court characterised the arbitration agreement as a 'forum selection clause' and applied a conflicts of law analysis based on forum non conveniens.

Ontario court confirms narrow grounds for setting aside NAFTA award
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • September 15 2016

In a recent decision dismissing a petition to set aside an arbitral award, the Ontario Superior Court of Justice affirmed Canada's commitment to the arbitral process as a final, binding method of dispute resolution, and reiterated the limited ability of arbitral debtors to set aside an award under Section 34(2) of the Commercial Arbitration Code.

Ontario court rules arbitral creditors cannot seize shares held by Kyrgyz-owned company
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • August 18 2016

The Ontario Superior Court of Justice recently ruled on the ability of arbitral creditors to seize assets of state-owned entities. The decision follows a line of decisions from Ontario courts regarding attempts to seize shares in an Ontario company held by a Kyrgyz-owned entity and serves as a reminder of some of the difficulties arbitral creditors may face when collecting amounts owed under foreign arbitral awards.

Court addresses multi-party and multi-contract issues to stay an action in favour of arbitration
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • July 14 2016

An Alberta court recently considered the complexities that can arise in multi-party disputes where arbitration clauses may not be included in all of the relevant agreements. The court balanced the issues of judicial efficiency with the need to respect parties' agreements (or absence thereof) to refer a dispute to arbitration under Alberta's International Commercial Arbitration Act.

Type of arbitral error determines judicial discretion to set aside international award
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • May 12 2016

The Ontario Court of Appeal has recently clarified the scope of an application judge's discretion to set aside an arbitral award pursuant to Article 34(2) of the United Nations Commission on International Trade Law Model Law. The decision in Popack v Lipsyzc affirms the decision of the lower court to uphold an arbitral award in the unique circumstances of that case despite an ex parte meeting that amounted to a breach of the arbitration agreement.

Fundamental change to conduct of investor-state arbitrations in final CETA text
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • March 24 2016

Canada and the European Union have released the final legal text of the Canada-EU Comprehensive Economic and Trade Agreement (CETA). The ad hoc nature of arbitral tribunals has led to wide variability in rulings and controversial interpretations of investment protection provisions. The final CETA text introduces a groundbreaking change to address this criticism.

Court reaffirms application of res judicata and issue estoppel to commercial arbitrations
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • February 11 2016

The recent Alberta Court of Appeal decision confirms that the legal principles of res judicata and issue estoppel can, as a matter of law, apply to commercial arbitrations. Although Enmax Energy involved legal questions relating to a domestic arbitration, its findings are consistent with other decisions across the Canadian provinces.

Unsubstantiated allegation of reasonable apprehension of bias may result in costs
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • December 03 2015

In a recent decision the Ontario Superior Court of Justice confirmed that an arbitration party should not unreasonably be deprived of its contractual right to appoint an arbitrator of its choice, and that a party bringing unsubstantiated allegations of a reasonable apprehension of bias may face cost consequences. The decision sends a strong warning against making baseless attempts to upset the arbitration process.

Lessons on using Mareva injunctions to execute international arbitral awards
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • July 30 2015

Mareva injunctions can be a powerful tool to preserve assets pending the enforcement or rendering of an arbitral award. The international arbitration proceeding of Stans Energy Corp v Kyrgyz Republic provides both a useful example of the effectiveness of Mareva injunctions and a cautionary reminder of the strict obligations on counsel to disclose all material facts related to a Mareva application.

Court refuses to set aside international award despite breach of UNCITRAL Model Law
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • July 09 2015

A recent Ontario Superior Court of Justice decision affirms the Canadian courts' propensity to uphold international arbitral awards under the United Nations Commission on International Trade Law Model Law. It sends a strong reminder to courts to carefully weigh potential prejudices before setting aside an arbitral award, regardless of the grounds advanced for doing so.

Canadian court warns that parties ignore arbitration agreements at their peril
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • April 23 2015

An Alberta court has confirmed that a party choosing to commence an action in the face of a valid agreement to arbitrate runs the risk of being left without a remedy, and that commencing litigation when arbitration is the proper forum does not stop the limitation period clock from running. The court held that in this case it was too late to commence arbitration now that the limitation period had expired.

Court favours arbitration over class proceedings in franchise context
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • February 12 2015

A recent decision of the Ontario Superior Court of Justice clarifies that the exception to enforcing an arbitration agreement expressed in Seidel v TELUS is limited and confined to clear statements of legislative intent to preserve the jurisdiction of the courts. This is consistent with Canadian courts' respect for arbitration and their narrow view of the exceptions to enforcing arbitration clauses.

Supreme Court affords substantial deference to arbitral process
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • September 04 2014

In a recent decision the Supreme Court, in the context of a challenge to a domestic arbitral award, has reaffirmed Canada's longstanding pro-arbitration stance. The global message from the Supreme Court to arbitration parties across Canada is that if they agree to arbitrate, they should expect to be bound by arbitrators' decisions. In other words, Canadian courts expect parties to respect the process for which they signed up.

Union Carbide v Bombardier: confidentiality of settlement communications
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • July 10 2014

A recent Supreme Court decision has clarified that a confidentiality clause in a mediation contract will not restrict a party from producing evidence of communications made in the mediation context in order to prove the terms of the settlement, unless that is the clearly intended effect of the mediation contract.

Arbitration under the Orgalime Conditions and potential role of the CISG
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • May 01 2014

The Orgalime Conditions are often adopted by parties in international sales transactions. Such transactions may also be subject to the United Nations Convention on Contracts for the International Sale of Goods (CISG). Parties may avoid potential issues relating to applicable substantive law by thinking of whether and to what extent the Orgalime Conditions and/or the CISG should apply to their international transaction.

A friendly place to seek enforcement of international arbitral awards
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • April 10 2014

Recent decisions of the British Columbia Supreme Court and the Ontario Court of Appeal have upheld the integrity of the arbitral process by enforcing international arbitral awards. Both courts applied the United Nations Commission on International Trade Law Model Law and New York Convention. The decisions confirm that a party which refuses to participate in arbitration for any reason does so at its own peril.

Appeal court robustly confirms extent of competence-competence's application
Borden Ladner Gervais LLP
  • Arbitration & ADR
  • Canada
  • December 19 2013

The Ontario Court of Appeal has held that the state's domestic commercial arbitration statute precludes appeals from decisions that stay litigation proceedings in favour of arbitration. As this provision has counterparts in other provinces and territories, the decision is likely to be significant throughout Canada.

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