Canada, Court of Appeal for Saskatchewan
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Canada / 25 November 1994 / Canada, Court of Appeal for Saskatchewan / BWV Investments Limited, and Saskferco Products Ing., et al. and Uhde GmbH
Country Canada Court Canada, Court of Appeal for Saskatchewan Date 25 November 1994 Parties BWV Investments Limited, and Saskferco Products Ing., et al. and Uhde GmbH Applicable NYC Provisions II | II(3) Source 119 DLR (4th) 577, [1995] 2 WWR 1 (SK CA) | online: CanLII
Languages English Summary BWV Investments Limited ("BVW") entered into a subcontract with Uhde GmbH ("UHDE"), the contractor, and another subcontractor Saskferco Products Ing. ("Saskferco"). The subcontract contained an agreement providing for arbitration pursuant to the Arbitration Rules of the United Nations Commission for International Commercial Law (“UNCITRAL Rules”). A dispute arose and BWV filed a builder's lien against the project and sued Saskferco and UHDE under the Saskatchewan Builders' Lien Act ("BLA"). UHDE submitted a motion requesting that the claim be referred to arbitration in accordance with the arbitration agreement in the subcontract. The chambers judge denied the motion, finding that the arbitration clause was null and void under Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), which was incorporated within the Saskatchewan International Commercial Arbitration Act. The chambers judge recognized that the dispute between UHDE and BWV would ordinarily be resolved under the BLA, and that ordering arbitration would infringe rights provided under the BLA. He also considered the presence of the several third-party lienholders who were granted rights under the BLA but, in his opinion, would "lose" these rights if arbitration were ordered. UDHE appealed. The Court of Appeal for Saskatchewan reversed the first instance judgment, stayed the court proceedings and referred the matter to arbitration. The Court of Appeal reviewed case law from a number of jurisdictions and found a growing tendency to give effect to arbitration agreements and to hold parties to their contractual intentions. It noted while there were relatively fewer Canadian cases in interpreting the UNCITRAL Model Law and the NYC, a similar trend was emerging in Canadian jurisprudence. The Court considered that Article II(3) NYC and Article 8(1) of the UNICTRAL Model Law require that where a valid arbitration agreement exists, a dispute must be referred to arbitration. The Court concluded that although the BLA provides alternative mechanisms for resolving the underlying dispute between the parties, it was not inconsistent with the parties' arbitration agreement and could not render it null and void. With regard to other sub-subcontractors of BWV who had also filed builder's liens against the project, the Court found that, as there was no evidence that the sub-subcontracts incorporated the arbitration agreement, the sub-subcontractors were “third parties” with regard to the dispute between BWV, Saskferco and UHDE. The Court of Appeal ordered that the actions by sub-subcontractors be stayed pending the arbitration between BWV, UDHE and Saskfero in order to avoid the problem of multiple concurrent proceedings. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=576&opac_view=6 Attachment (1)
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