The British Columbia Court of Appeal recently declared a notice to arbitrate a nullity because it sought to commence four separate arbitrations against three different parties under four separate arbitration agreements. Practitioners and parties entering into multiple contracts relating to the same subject matter or project should consider whether it is desirable to have all potential disputes which arise under the multiple contracts arbitrated in one proceeding.
The Canadian courts have confirmed in a series of recent cases that third-party funding is permitted in Canada. Previously, in Canada's common law jurisdictions (ie, all provinces aside from Quebec), opportunities for third-party funding were constrained by the longstanding common law principles of maintenance and champerty. However, the law has evolved to permit third-party funding, subject to certain restrictions.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The use of funding agreements in international arbitration proceedings is increasingly common. The extent to which privilege may attach to a funding agreement governed by the laws of British Columbia was recently addressed by the British Columbia Supreme Court in the context of a class action proceeding.
The British Columbia Court of Appeal recently upheld the integrity of the arbitral process, denying a party's attempts to raise new evidence and new issues in a judicial review of an arbitral award. The decision highlights risks that a party may face if it does not diligently participate in arbitration proceedings, and affirms the narrow scope of judicial review of arbitral awards in British Columbia.
International commercial arbitration is not simply domestic commercial litigation in disguise. It involves a unique skill set and requires particular training and expertise. A company that ignores the highly specialised nature of international arbitration does so at its own peril.
A recent decision of the British Columbia Supreme Court has left open the possibility that in British Columbia, as in Ontario, the language of a commitment to arbitrate might, in some cases, be sufficient to require the arbitration of claims for statutory remedies.
The Supreme Court of British Columbia has lifted an application to set aside a stay of proceedings that had stayed a British Columbia action in favour of a Finnish arbitration. The court held that the applicable test was whether it was arguable that the claims at issue fell within the scope of the arbitration agreement.