“Out here, due process is a bullet”, said John Wayne’s Col. Kirby in The Green Berets.
Due process. Procedural fairness. Natural justice. Audi alteram partem. These are all different ways of formulating one of the bedrock principles of “civilized” dispute resolution processes, which distinguishes such processes from the guerrilla justice dispensed on the battlefield. Parties must be treated fairly and equally. Parties must be given the opportunity to present their case. The process – taken as a whole – must be fair.
Continue reading “Myriam’s 2022 Hot Topic: Procedural Fairness in International Arbitration – #704”
My hot topic for 2022 is the treatment of arbitration agreements by the courts. Frequently, challenges to arbitral jurisdiction and appeals are brought on the basis of the scope and enforceability of an arbitration agreement. A review of a number of cases within the last year indicates a trend that a strongly, and often broadly drafted agreements are frequently the difference between a successful and unsuccessful court challenge. This case note will review a number of notable cases we have seen this past year.
Continue reading “Liz’s 2022 Hot Topic: Treatment of arbitration agreements in 2022 – #703”
For this year’s “hot topics” post, I have chosen to spotlight an enduring subject: the policy conflict that can arise between arbitration and consumer class actions. The heat comes from developments in 2022 which suggest a fresh look (or two!) at how to reconcile pro-arbitration international legal commitments and policy objectives with consumer protection and class action laws.
Continue reading “Timothy’s 2022 Hot Topic – At the crossroads of class actions and arbitration – #702”
Parties keep trying, but the threshold is still high for disqualifying an arbitrator. These cases in 2022 provide a sampling of the circumstances in which the threshold is met – and those in which it is not.
Continue reading “Lisa’s 2022 Hot Topic #2: Challenging the arbitrator – #700”
My “hot topic” for 2022 is the Court of Appeal for Ontario’s confirmation that an arbitration can be determined by summary judgment. In Optiva Inc. v. Tbaytel, 2022 ONCA 646, the Court approved proceeding by summary judgment motion where such a motion is consistent with the parties’ arbitration agreement. While the case addressed four grounds of appeal, including whether the arbitrator’s ruling to proceed by summary judgment was a procedural order or a jurisdictional award, the central issue, and my “hot topic,” is whether the arbitrator’s partial award, which decided a summary judgment motion should be set aside. For a summary of the decision, see Case Note – No oral hearing required even if one party requests it #667.
Continue reading “John’s 2022 Hot Topic: Summary judgment in arbitration – #699”
By Eric Morgan and James Plotkin.
This past year brought two important decisions about the interrelationship between arbitration and insolvency proceedings: the Supreme Court’s decision in Peace River Hydro Partners v Petrowest, 2022 SCC 41 (“Petrowest”) and the Ontario Court of Appeal’s decision in Mundo Media Ltd. (Re), 2022 ONCA 607 (“Mundo”). Both decisions, in different ways, concern the tension between judicial authority to supervise proceedings brought by a receiver or trustee under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”) and parties’ autonomy to choose to have their disputes determined through arbitration. While the two Courts reached the same bottom-line conclusion – that the particular arbitration clauses were “inoperative” in the circumstances of an insolvency and thus not binding on receivers or trustees – the decisions leave unanswered questions about the ways that insolvency and arbitration continue to interact with each other.
Continue reading “Eric/James’s 2022 Hot Topic: What is next for arbitration and insolvency? (Part 1) – #698”
The last year has seen several judgments which bind third parties to arbitration, specifically in Québec. The basic principles remain unchanged: the rule is still that a contract has effect only between the contracting parties (sec. 1440 CCQ). However, there is a trend, which seemed clear starting in 2021 and continues into 2022, to bring non-signatories into arbitration in certain circumstances, as set out in Québec’s recent judgments. Many reasons explain these decisions: let’s explore why this new trend is arising in Québec.
Continue reading “Marie-Claude’s 2022 Hot Topic: Binding non-signatories – A new trend arising in Québec? – #697”
Although there is provision in most provincial domestic arbitration legislation and the Model Law for the resignation of the arbitrator, there is little guidance on when the arbitrator may do so and the potential consequences once that occurs. However, two cases released in 2022 are helpful in that they suggest: (1) potential limitations on the discretion of an arbitrator to resign, regardless of the rights contained in the legislation; and (2) how the parties many anticipate this issue and provide for it in their arbitration agreement if it is important, so as to minimize the inevitable disruption that arises when an arbitrator resigns.
Continue reading “Lisa’s 2022 Hot Topic #1: Arbitrator resignation – the when, how, and what next? – #696”