Institutional Archives - Page 2 of 4

January 6, 2023March 13, 2023

John’s 2022 Hot Topic: Summary judgment in arbitration – #699

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.

November 23, 2022November 28, 2022

Ontario – Refusal to respond not a waiver to arbitrate – #686

In Justmark Industries Inc. v. Infinitus (China) Ltd., 2022 ONSC 5495, Justice Williams granted the Defendant/Moving Party’s motion to stay the court action in favour of arbitration. The Plaintiff/Responding Party Justmark Industries Inc. (“Justmark”) commenced the court action for breach of contract against the Defendant/Moving Party Infinitus (China) Ltd. (“Infinitus”). The contract, however, contained an arbitration clause requiring disputes to be arbitrated in Hong Kong by the Arbitration Committee of the International Trade Council (the “ITC”) pursuant to the law of the United Kingdom. As such, Infinitus brought a motion under s 9 of Ontario’s International Commercial Arbitration Act, 2017 (the “ICAA”), which incorporates Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), to stay the proceedings. In response, Justmark alleged that Infinitus had waived its right to arbitration and thus rendered the arbitration agreement “inoperative” under Model Law Article 8(1). Justmark claimed that Infinitus’s failure to respond to its requests to commence arbitration amounted to waiver. Justice Williams, however, dismissed Justmark’s argument on the grounds that there was no evidence that “[16] … Infinitus had the requisite ‘unequivocal and conscious intention,’ or any intention, to abandon its right to arbitrate.”

November 22, 2022November 18, 2022

Alberta – Arbitral award enforced despite Russian sanctions – #685

In Angophora Holdings Limited v. Ovsyankin, 2022 ABKB 711, Justice Romaine dismissed an application by an arbitral award debtor to stay enforcement of the award issued in favour of a party indirectly owned and controlled by Russian bank Gazprombank JSC, which is an entity subject to Russian sanctions.

November 8, 2022November 15, 2022

Ontario – Foreign award enforcement upheld on appeal despite previous attornment to court – #679

In Wang v. Luo, 2022 ONSC 5544, Justice LeMay, sitting as an Ontario Divisional Court judge, upheld the enforcement of a foreign arbitral award rendered under the auspices of the China International Economic and Trade Arbitration Commission (“CIETAC”). He rejected the Appellant’s arguments that the Superior Court of Justice erred in enforcing the award, including an argument that enforcement was improper given the Respondent’s previous attempt to pursue its claim before the Ontario Small Claims Court.

November 3, 2022November 15, 2022

Québec – No clean hands, no security despite stay of homologation application – #677

In Specter Aviation v United Mining Supply, 2022 QCCS 3643, Justice Castonguay granted a stay of an application by the successful party in a foreign arbitration to homologate the award, but denied the applicants’ alternative request for security, pending the unsuccessful party’s annulment application to the Paris Court of Appeal. Despite recognizing that a court should be reluctant to interfere with a successful party’s enforcement efforts, Justice Castonguay found that the annulment application was, “neither futile nor frivolous” and that the successful party did not have clean hands and had resorted to a self-help remedy. He also ordered costs against the successful party.

August 2, 2022August 2, 2022

England – Court clarifies requirements for validly appointing arbitrators – #646

As our readers know, Canadian courts have been generating a wealth of jurisprudence on many international arbitration-related issues of late. However, there are still some lacunae in Canadian jurisprudence, which courts will often fill by referring to jurisprudence from other leading arbitral jurisdictions, including England and UNCITRAL Model Law on International Commercial Arbitration jurisdictions such as Australia, New Zealand and Singapore. Article 2A(1) of the Model Law explicitly provides for this: “In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith.” Because of this, Arbitration Matters will occasionally report on interesting cases from other jurisdictions which could be applied in Canada if the issue were to present itself here. One such case made our radar this week, because it deals with an issue that is seldom fought about in Canada: whether an arbitrator was validly appointed. In ARI v. WXJ, [2022] EWHC 1543 (Comm), Justice Foxton of the English Commercial Court rejected the Claimant’s argument that the Respondent’s appointee was invalidly appointed, and that the arbitrator appointed by the Claimant should therefore decide the dispute as sole arbitrator.

August 2, 2022August 2, 2022

Québec – 10-year limitation for foreign award recognition and enforcement– #644

In Itani v. Société Générale de Banque au Liban SAL, 2022 QCCA 920, the Québec Court of Appeal (Schrager, Moore, and Kalichman JJA) considered the limitation period for recognition and enforcement of an arbitral award rendered outside Québec. The Court applied the Supreme Court of Canada’s decision in Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19, confirming that recognition and enforcement of a foreign arbitral award is governed by the rules of procedure applicable in the territory in which the application is made―so it differs from province to province. The Court of Appeal considered the applicable provisions of the Québec Civil Code and ruled that the application to recognize and enforce the arbitral award was subject to a 10-year limitation period, upholding the decision of Justice Poulin at first instance.

July 19, 2022July 21, 2022

British Columbia: – Court partially stays class action related to videogame “loot boxes” – #639

In Petty v Niantic Inc., 2022 BCSC 1077, Justice Mayer stayed a proposed class action in favour of arbitration, except in respect of claims advanced under B.C.’s Business Practices and Consumer Protection Act [BPCPA]. He rejected the Representative Plaintiffs’ arguments that the arbitration agreements were null and void for unconscionability and/or violating B.C. public policy. He also applied the competence-competence principle, holding the arbitral tribunal should decide first as to its jurisdiction over claims based on the Competition Act where the parties’ contract provided for California law.

July 5, 2022July 5, 2022

Ontario – Motion to “compel” participation in arbitration dismissed, despite arbitration clause – #635

In Black & McDonald v. Eiffage Innovative Canada Inc., 2022 ONSC 1855, Justice Dow was faced with two motions: (1) the defendants’ motion to stay the Ontario action on the basis of forum non conveniens; and (2) the plaintiff’s motion to “compel” the defendants to participate in arbitration as a result of an arbitration clause contained in the relevant contract. Justice Dow granted the stay on the ground that British Columbia was the proper forum, but declined to “compel” the defendants to participate in arbitration. He found that whether the arbitrator had jurisdiction over the dispute was to be determined by the arbitrator at first instance and that any failure on the part of the defendants to participate in an arbitration would have consequences for them in that proceeding.

July 5, 2022July 5, 2022

Québec – Court prevents “improper attempt to circumvent” final ICC award – #634

In Eurobank Ergasias v. Bombardier inc., 2022 QCCA 802, a majority of the Québec Court of Appeal (Mainville and Baudouin, JJ.A.): (1) confirmed the homologation of an ICC Arbitral Tribunal Final Award (“Final Award”); (2) confirmed the trial judge’s decision that a Québec bank did not have to pay under a Letter of Counter-Guarantee that was called upon, the purpose of which was the evasion of the binding ICC arbitration process; and (3) overturned the trial judge’s decision to direct the Hellenic Ministry of National Defence (“HMOD”), a branch of the Greek government, to comply with the Final Award because HMOD was not an entity domiciled in Québec and homologation is for the purpose of rendering the Final Award legally binding in Québec, not in Greece.