The Ontario Superior Court recently considered the application and operability of an arbitration clause in a subcontract in the context of a related claims proceeding under a related main contract. The case highlights the challenges involved in drafting pre-dispute arbitration clauses that will operate effectively when multiple claims arise between multiple parties under multiple contracts.
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.
In a decision that is inconsistent with the weight of Canadian and international jurisprudence, the Court of Queen's Bench of Alberta recently ordered the consolidation of arbitration proceedings without the consent of all parties. For now, parties and practitioners should be aware that arbitrations seated in Alberta may be subject to consolidation without consent.
The Ontario Court of Appeal recently interpreted when an international commercial arbitration award becomes binding on the parties for the purposes of judicial recognition and enforcement of foreign arbitral awards. It held that the determination of whether an award is binding pursuant to Articles 35 and 36 of the United Nations Commission on International Trade Law Model Law rests with the court rather than the arbitral tribunal.
Third-party funding in commercial arbitration in Canada has moved increasingly into the mainstream. Its implementation is largely influenced by the treatment of third-party funding in litigation, which is why it is important for arbitration practitioners in Canada to continue to follow jurisprudential trends regarding the treatment of third-party funding. A recent third-party litigation decision from Quebec provides valuable insight for arbitrators in this regard.
British Columbia recently introduced amendments to its International Commercial Arbitration Act. The proposed amendments are intended to modernise British Columbia's international arbitration legislation and align it with accepted international standards. In so doing, the government hopes to position Vancouver as a more desirable location to host international commercial arbitration proceedings.
A recent Ontario Court of Appeal decision has affirmed the favourable Canadian approach to the enforcement of international arbitration awards under the United Nations Commission on International Trade Law Model Law. The court of appeal's restraint when asked to set aside and refuse to enforce an international arbitral award is consistent with recent cases, which have upheld the narrow circumstances in which courts can do so.
The Court of Queen's Bench of Alberta recently applied the principle of competence-competence in the context of a parallel litigation and arbitration dispute resolution procedure. As parallel dispute resolution procedures give rise to a complex interplay between the jurisdiction of the courts and arbitral tribunals, the case is an excellent example of the practical application of the principle and can serve as a useful tool for both domestic and international arbitration practitioners.
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.
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.
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.
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.
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.
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.
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.
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.
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.