Colin Trehearne, Author at Arbitration Matters

June 9, 2025June 9, 2025

International – Waiver of State Immunity and State Parties to the NY Convention – #908

On 17 April 2025, England’s High Court released its judgment in CC/Devas (Mauritius) Ltd. et ors v The Republic of India. The judgment relates to sovereign immunity pursuant to the UK’s State Immunity Act 1978 (“SIA UK”) and the enforcement of arbitral awards made pursuant to a bilateral investment treaty (“BIT”). The specific question for the English High Court was whether or not India had submitted to the adjudicative jurisdiction of the English courts by its ratification of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1959) (“NY Convention”). In finding that India had not waived its sovereign immunity through “prior written agreement” only by ratifying the NY Convention, the English High Court has joined company with other American jurisprudence and has parted company with Canadian, Singaporean, and Dutch jurisprudence arising from the same factual background and underlying disputes.

January 28, 2025January 31, 2025

International – Agreement to Arbitration and Enforcement Jurisdiction a Package – #891

In Republic of India c. CCDM Holdings, 2024 QCCA 1620 the Court was asked to determine three appeals relating to the enforcement of arbitral awards in the context of: (1) both the commerciality exception and waiver in the State Immunity Act; (“SIA”) (2) seizure before judgment in escrow of sums held by the Montreal-headquartered International Air Transport Association (“IATA”) for the benefit of two Indian state entities before the question of their immunity had been decided on the merits; and (3) the temporal scope of provincial legislation passed in response to said seizures at the IATA. The Court concluded that: (1) India had waived immunity under the SIA by becoming a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”) and by agreeing to arbitration under the 1998 India-Mauritius bilateral investment treaty (“India-Mauritius BIT”); (2) the first-instance court had not erred in authorizing ex parte seizure before judgment in advance of the question of immunity being decided on the merits; and (3) the provincial legislation was effective retroactively to the effective date given therein but no further back in time – the seizure of sums held by the IATA prior to this date remained untouched by the legislation.

January 10, 2025January 10, 2025

Colin’s 2024 Hot Topic: ONCA weighs in on Bias in Aroma – #888

In Aroma Franchise Company, Inc. v Aroma Espresso Bar Canada Inc., 2024 ONCA 839, the Court overturned a decision of the Ontario Superior Court of Justice, which had set aside two international arbitration awards on the basis of the existence of a reasonable apprehension of bias on the part of the Arbitrator. Undoubtedly, this was the arbitration case of 2024. The first instance decision and related proceedings have previously been canvassed by Arbitration Matters (see Ontario – Multiple arbitral appointments give rise to reasonable apprehension of bias – #734 – Arbitration Matters, Lisa Reflects (2023): Aroma – the blockbuster case of 2023? – #804 – Arbitration Matters, and Ontario – Arbitrator no jurisdiction to hear challenge for bias after partial final award – #691 – Arbitration Matters). It is a multiple appointments case. It arose out of a decision by the Arbitrator to take on a second appointment by the same counsel acting in the Aroma arbitration that was only disclosed by accident with the issuance of the final award. The first Instance decision generated buzz in the arbitration community for, among other things: (1) the Judge below finding it was a “bad look” for the Arbitrator to have accepted an appointment in another arbitration part way through the Aroma arbitration by the same lead counsel in both matters; (2) the Judge considering relevant the parties’ pre-appointment communications on the criteria for the arbitrator to be appointed; and (3) the unresolved question of the impact, if any, of an arbitrator’s financial interest in appointments. It is the second issue that has received the most commentary on this decision.