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.
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.
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.
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.
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.
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 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.
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.
In Murphy v Amway Corporation the Federal Court of Appeal affirmed that class claims brought under Section 36 of the Competition Act are arbitrable. The decision reiterates prior jurisprudence that in the absence of legislative language to the contrary, Canadian courts will enforce arbitration agreements and class action waivers.
Negotiations with China on a foreign investment protection agreement have been ongoing since 1994, but were repeatedly frustrated by China's intransigence on the issue of dispute resolution. An agreement has now been hammered out; once it enters into force, investors will need to consider carefully whether to invoke any available domestic legal remedies before submitting claims to arbitration under the treaty.
Businesspeople and corporate counsel often seem not to pay much attention to their choice of dispute resolution mechanism when negotiating a contract. They should consider carefully the kinds of dispute likely to arise and choose a dispute resolution mechanism accordingly. A poor choice could result in a commitment to an inappropriate mechanism; and if no choice is made, then by default litigation is chosen.
In 1986 the Uniform Law Conference of Canada developed the Uniform International Commercial Arbitration Act. The conference has now established a working group to bring forward recommendations to update the act in 2013. The aim of this initiative is to help to maintain Canada's reputation as a leader in the field of international commercial arbitration.
The Ontario Court of Appeal has held that when an application is brought under the United Nations Commission on International Trade Law Model Law to set aside an arbitral award, made under Chapter 11 of the North American Free Trade Agreement, on the grounds of jurisdictional error, the standard of review to be applied by a court is 'correctness', not 'reasonableness'.
A potential tug-of-war between courts and arbitration tribunals concerning their respective roles in shareholder disputes involving both statutory and contractual claims has been averted. The Supreme Court of British Columbia has ruled that a claim for statutory oppression relief should be stayed until the determination, by arbitration, of the underlying issue of the proper interpretation of a unanimous shareholder agreement.
The recent case of Padmawar v Altig provides a useful summary of the test for determining whether a stay of proceedings should be granted in accordance with the Commercial Arbitration Act of British Columbia. The court refused a stay, finding that the dispute fell under a separate oral agreement and not under the written agreement which contained the arbitration clause.
A recent British Columbia Supreme Court decision confirms that the courts are not empowered to determine the validity of an alleged arbitration agreement before the commencement of an arbitration proceeding. The court concluded that the proper procedure for such a determination contemplates that decision being made by an arbitral tribunal, with the arbitral tribunal's decision to accept jurisdiction ultimately being reviewable by the court.
In a recent case the Quebec Court of Appeal provided guidance with respect to an important issue in the law of arbitration in Quebec, outlining that a future potential need for injunctive relief amounted to insufficient justification to find that an arbitrator lacked jurisdiction.