Canada, Court of Queen's Bench of Alberta
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Canada / 12 April 2016 / Canada, Court of Queen's Bench of Alberta / Toyota Tsusho Wheatland Inc. v. Encana Corporation and PrairieSky Royalty Ltd. / 1501 10484
Country Canada Court Canada, Court of Queen's Bench of Alberta Date 12 April 2016 Parties Toyota Tsusho Wheatland Inc. v. Encana Corporation and PrairieSky Royalty Ltd. Case number 1501 10484 Applicable NYC Provisions I | I(1) | II | II(3) | VI Source 2016 ABQB 209 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3661&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 20 April 2015 Parties West Coast Installations, Inc. v. Frazier Industrial Company Case number 1301 14981 Applicable NYC Provisions I | II | II(3) Source 2015 ABQB 257 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3659&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 02 July 2008 Parties Bad Ass Coffee Company of Hawaii Inc. v. Bad Ass Enterprises Inc., Attitude Coffee Corporation and Ron Plucer Case number 0501 12165 Applicable NYC Provisions V | V(1) | V(1)(c) | V(2) | V(2)(b) Source 2008 ABQB 404 | online: CanLII
Languages English Summary Bad Ass Coffee Company of Hawaii Inc. ("BAH") and Bad Ass Enterprises Inc. ("Enterprises") concluded several agreements under a franchise arrangement, through which Enterprises became developers of franchise operations and distributors of Bad Ass brand coffee products in Alberta. A director of Enterprises signed personal guarantees for payment under these agreements. However, these guarantees were not notarized, in violation of the Guarantees Acknowledgment Act of Alberta ("GAA"). A dispute arose out of three agreements, each of which contained clauses providing for arbitration in Utah. BAH filed a request for arbitration, but Enterprises objected to the proceedings. BAH filed a petition with the U.S. District Court for the District of Utah for an order compelling arbitration of the dispute. The Court ordered that the arbitration should proceed. After participating in the pre-hearing conference, Enterprises sought to withdraw from the proceedings as it objected to the jurisdiction of the tribunal and declared that they would not participate in the arbitration hearing. The sole arbitrator then decided the case in favor of BAH. After BAH obtained confirmation of the award through a judgment by the Utah District Court, it successfully applied for enforcement of this judgment in Alberta. Enterprises appealed against this judgment, arguing that (i) the enforcement of the award would violate public policy in Alberta because the guarantees were void under the GAA, and (ii) enforcement should be denied pursuant to Article V(1)(c) because the award exceeded the scope of submission to arbitration by addressing various fees charged by the franchisor that the parties' agreement specifically excluded from arbitration. The Alberta Court of Queen's Bench dismissed the appeal. According to the Court, the purpose of the GAA is to protect unsophisticated borrowers from unexpected debts. While it considered that this purpose is "a fundamental value" of Alberta, it should be applied against the background of the concrete facts of each case. The director of Enterprises was a businessman who was very familiar with financial instruments and knew what obligation he was undertaking, and therefore the breach of the GAA would not support a public policy defense. The Court considered that this conclusion would also be reached by applying Article V(2)(b) NYC. The Court rejected Enterprises' defense to enforcement based on Article V(1)(c), noting that the dispute involved the complete breakdown of the parties' business relationships, and not specific fees, and therefore the arbitrators had not exceeded their jurisdiction. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=802&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 24 October 2007 Parties Karaha Bodas Company, L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara and P.T. PLN (Persero) Case number 0203 03768 Applicable NYC Provisions V | V(2) | V(2)(b) Source 2007 ABQB 616 | online: CanLII
Languages English Summary Karaha Bodas Company, L.L.C. ("KBC") and Perusahaan Pertambangan Minyak Dan Gas Bumi Negara ("Pertamina"), the Indonesian state oil company, concluded an agreement that bestowed Pertamina with management obligations for a geothermal project in Indonesia and KBC the responsibility for financing the project and building, owning, and operating the generating facilities. The same day, an agreement for the sale of energy from this project was concluded between KBC, Pertamina and P.T. PLN (Persero) ("PLN"), a state-owned electric utility company. Both agreements provided for the application of Indonesian law, and dispute settlement by arbitration in Switzerland pursuant to the Arbitration Rules of the United Nations Commission for International Commercial Law (“UNCITRAL Rules”). Four years later, the project was indefinitely suspended by Presidential Decree. KBC initiated arbitration in Switzerland against Pertamina and PLN for the breach of both agreements. In a preliminary award the tribunal rejected motions by Pertamina and PLN to consolidate the claims. The tribunal eventually decided the dispute in favor of KBC. Pertamina’s application to have the award set aside in Switzerland was unsuccessful. Pertamina then successfully annulled the award before a first instance court in Indonesia, but that decision was reversed by the Supreme Court of Indonesia. KBC subsequently obtained enforcement of the award in several countries, including Hong Kong and the United States. KBC then obtained enforcement of the award before the Alberta Court of Queen’s Bench. Pertamina appealed that decision, arguing that enforcement of the award should be denied because the award had been obtained by fraud, and its enforcement should therefore be denied pursuant to Article V(2)(b) NYC because it would be contrary to public policy. The Alberta Court of Queen’s Bench allowed the appeal to proceed on the merits. However, it rejected Pertamina's defense to enforcement based on Article V(2)(b) NYC, considering that "it is not up to the Alberta courts to retry the matter” or to second-guess the findings of an arbitral tribunal in the course of an application to register and enforce a foreign award. According to the Court, Article V NYC expresses the presumption of validity of a foreign award, and only when a party can establish one of the enumerated defenses to enforcement can a court refuse to enforce it. According to the Court, enforcement of the award would only violate the public policy of the domestic jurisdiction if the award was patently unreasonable, and this standard had not been met by the fraud allegations in the case at bar. affirms : see also :
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / a.Substantive public policy / §30
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Procedural public policy / §35
- V(2) / V(2)(b) / 2. ANALYSIS (V(2)(b)) / b. Ex officio review, burden of proof and standard of proof / §58
- Canada / 20 February 2003 / Canada, Court of Queen’s Bench of Alberta / Karaha Bodas Company, L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara and P.T. PLN (Persero) / 0203 03768
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=801&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 26 September 2007 Parties Bad Ass Coffee Company of Hawaii Inc. v. Bad Ass Enterprises Inc., Attitude Coffee Corporation and Ron Plucer Case number 0501 12165 Applicable NYC Provisions V | V(2) | V(2)(b) Source 2007 ABQB 581 | online: CanLII
Languages English Summary Bad Ass Coffee Company of Hawaii Inc. ("BAH") and Bad Ass Enterprises Inc. ("Enterprises") concluded several agreements under a franchise arrangement, through which Enterprises became developers of franchise operations and distributors of Bad Ass brand coffee products in Alberta. A director of Enterprises signed personal guarantees for payment under these agreements. However, these guarantees were not notarized, in violation of the Guarantees Acknowledgment Act of Alberta ("GAA"). A dispute arose out of three agreements, which each contained clauses providing for arbitration in Utah. BAH filed a request for arbitration, but Enterprises objected to the proceedings. BAH filed a petition with the U.S. District Court for the District of Utah for an order compelling arbitration of the dispute. The Court ordered that the arbitration should proceed. After participating in the pre-hearing conference, Enterprises sought to withdraw from the proceedings as it objected to the jurisdiction of the tribunal and declared that they would not participate in the arbitration hearing. The sole arbitrator then decided the case in favor of BAH. After BAH obtained confirmation of the award through a judgment by the Utah District Court, it sought enforcement of that judgment in Canada. Enterprise argued that enforcement judgment which confirmed the award would violate public policy in Alberta because the guarantees were void under the GAA. The Alberta Court of Queen's Bench held that the formal requirements for enforcement had been met, but discussed whether enforcement should be denied on public policy grounds. According to the defendants, enforcement of the judgment was against public policy because the award violated the Alberta Franchises Act. The Court referred to the decision in Beals v. Saldanha ("Beals"), where the Supreme Court of Canada had held that a foreign judgment will not be enforced when the foreign law is contrary to the its view of basic morality. It considered that this authority would also apply in respect of the enforcement of foreign arbitral awards. The Court then reviewed the understanding of public policy in Article V(2)(b) NYC, which it stated covered fundamental principles of law and justice in substantive as well as procedural respects. The Court found that while the standard from Beals can be applied when there is a violation of internal law, there was no violation of public policy in this case has not been met and the Utah judgment that confirmed the award should be enforced. Generally, the Court stated that the public policy exception must be narrowly defined to allow the increasingly global marketplace to operate. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=582&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 29 June 2007 Parties Yugraneft Corporation v. Rexx Management Corporation Source 2007 ABQB 450 | online: CanLII
Languages English Summary The Yugraneft Corporation (“Yugraneft”) and Rexx Management (“Rexx”) concluded a supply agreement containing an arbitration clause providing for the resolution of all disputes by a panel of three arbitrators in Moscow under the rules of the Russian International Commercial Arbitration Court (“ICAC”). A dispute arose between the parties. Yugraneft obtained a favourable award and brought an application for enforcement in Alberta. Rexx sought dismissal of the application on the grounds that the application was time-barred because it had not been brought within the two-year limitation under Section 3(1)(a) of the Alberta Limitations Act (the “Limitations Act”), and that enforcing the award would be contrary to public policy in Alberta as the arbitral tribunal had refused to hear and deliberate on one of Rexx’s key arguments regarding the illegal takeover of Yugraneft. The Alberta Court of Queen’s Bench refused to enforce the arbitral award on the ground that the application was time-barred under the Limitations Act. Concerning Rexx’s defence to enforcement based on public policy, the Court noted that the enforcement of international arbitral awards in Alberta was governed by the Alberta International Commercial Arbitration Act, which incorporated both the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) and the NYC. The Court of Queen’s Bench noted that while both the UNCITRAL Model Law and NYC state that a court can refuse to enforce an international arbitration award that offends public policy in the state in which recognition is sought, this ground for non-enforcement had been interpreted narrowly by Canadian case law. It referred to the decision in Schreter v. Gasmac, where the Ontario Court of Justice stated that the term “public policy” under the NYC covered only fundamental principles of law and justice. The Court of Queen’s Bench considered that in the case at hand, Rexx had not demonstrated that enforcing the award would offend these basic principles. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=902&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 09 December 2004 Parties Karaha Bodas Company, L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara and P.T. PLN (Persero) Case number 0203 03768 Applicable NYC Provisions V | V(1) | V(1)(b) Source 2004 ABQB 918 | online: CanLII
Languages English Summary Karaha Bodas Company, L.L.C. ("KBC") and Perusahaan Pertambangan Minyak Dan Gas Bumi Negara ("Pertamina"), the Indonesian state oil company, concluded an agreement that bestowed Pertamina with management obligations for a geothermal project in Indonesia and KBC the responsibility for financing the project and building, owning, and operating the generating facilities. The same day, an agreement for the sale of energy from this project was concluded between KBC, Pertamina and P.T. PLN (Persero) ("PLN"), a state-owned electric utility company. Both agreements provided for the application of Indonesian law, and dispute settlement by arbitration in Switzerland pursuant to the Arbitration Rules of the United Nations Commission for International Commercial Law (“UNCITRAL Rules”). Four years later, the project was indefinitely suspended by Presidential Decree. KBC initiated arbitration in Switzerland against Pertamina and PLN for the breach of both agreements. In a preliminary award the tribunal rejected motions by Pertamina and PLN to consolidate the claims. The tribunal eventually decided the dispute in favor of KBC. Pertamina’s application to have the award set aside in Switzerland was unsuccessful. Pertamina then successfully annulled the award before a first instance court in Indonesia, but that decision was reversed by the Supreme Court of Indonesia. KBC subsequently obtained enforcement of the award in several countries, including Hong Kong and the United States. It then sought enforcement before the Alberta Court of Queen’s Bench. Pertamina and PLN argued that the composition of the arbitral tribunal was in a violation of the arbitration clauses in the two agreements, and that justified refusal to recognize and enforce the award pursuant to Article V(1)(d) NYC. Pertamina and PLN further argued that enforcement of the award would violate public policy because by finding that the defendants were liable for breach of contract, the arbitrators implied that the defendants should have performed under the contracts in defiance of the Presidential Decrees that had suspended the project. The Alberta Court of Queen’s Bench granted enforcement to the award. It noted that a party resisting enforcement has the onus of proving that one of the narrow grounds set out in Article V NYC is applicable. The Court held that the equestion of whether enforcement should be denied pursuant to Article V(1)(b) because the award had been set aside in the Indonesian courts was "moot" in light of the decision of the Indonesian Supreme Court reversing the first instance annulment decision. The Court denied the defendants' objections that the composition of the arbitral tribunal violated the arbitration clauses of the two agreements, holding that the two agreements were integrated contracts and were both subject to the Presidential Decree. The Court also rejected defendants' argument that enforcement of the award would violate public policy, without referring to Article V(2)(b). The Court referred to the agreements and found that KBC would be excuse for performance in cases of force majeure. Furthermore, Pertamina and PLN were state-owned and therefore could not claim that their liability for non-performance would violate public policy. Finally, the Court rejected defendants' argument that KBC's non-disclosure of its political risk insurance would be a violation of public policy. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=581&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 12 August 1994 Parties Borowski v. Heinrich Fiedler Perforiertechnik GmbH Applicable NYC Provisions II | II(1) Source 158 AR 213, [1994] 10 WWR 623 (AB QB) | online: CanLII
Languages English Summary Borowski was employed by Heinrich Fiedler Perforiertechnik GmbH (“Fiedler”). Borowski’s employment contract was terminated, and he sued for damages in lieu of notice and for loss of wages and benefits. Fiedler claimed that the Alberta courts did not have jurisdiction and the dispute should be referred to an arbitration tribunal, since the employment contract contained an arbitration clause which provided for arbitration in Georgia in accordance with the rules of the American Arbitration Association. The Alberta Court of Queen’s Bench stayed the claim for damages in lieu of notice and directed the same to be referred to arbitration, while allowing the claim for benefits, unpaid wages and expenses to proceed in the Court. The Court considered whether employment disputes could be submitted to arbitration in accordance with the provisions of the Alberta International Commercial Arbitration Act (“ICAA”), pursuant to which both the NYC and the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) applied in Alberta. The Court noted that Section 2(2) of the ICAA provides that in Alberta the NYC applies “only in respect of differences arising out of commercial relationships, whether contractual or not.” It also noted that the Government of Canada, when acceding to the NYC, declared that it would apply the NYC “only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in the case of the Province of Quebec, where the law did not provide for such limitation.” The Court considered that the parties’ agreement was a contract of employment giving rise to the status of master and servant, and not the type of relationship that one could consider to be a “commercial” legal relationship to which the NYC would apply, and therefore the claim for benefits, unpaid wages and expenses would have to proceed in the Court. It noted, however, that Fiedler had admitted that it owed Borowski for past wages and benefits and considered that because it was an implicit requirement in any arbitration agreement that there be some difference or dispute between the parties and there was no dispute on this matter that could be referred to arbitration. The Court considered that the wording of Article II(1) NYC, which expressly links the application of the arbitration agreement to the existence of a dispute, supported this finding. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=401&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of Alberta Date 14 May 1991 Parties Kaverit Steel and Crane v. Kone Corp. Applicable NYC Provisions I | I(1) | II | II(3) Source 1991 A.J. No. 450
Languages English Summary Kaverit Steel and Crane (“Kaverit Steel”) was a licensee and distributor of crane equipment and parts under written agreements with Kone Corporation (“Kone”), each of which included clauses for the resolution of all disputes by arbitration in Stockholm, Sweden, under the rules of the International Chamber of Commerce (“ICC”). A dispute arose and Kaverit Steel initiated court proceedings against Kone. Kone applied to the Alberta Court of Queen’s Bench to stay the action and refer the matter to arbitration, relying on the discretion granted to the courts under the Alberta Arbitration Act to stay court proceedings. Kaverit Steel argued that the International Commercial Arbitration Act (“ICAA”), to which the NYC is appended as a schedule, was applicable and not the Alberta Arbitration Act. It further argued that the ICAA could not be invoked to stay the proceedings, as the parties to the arbitration agreement did not include all the litigants raising a claim against Kone and therefore there was no arbitration agreement binding all the parties. This, they argued, would warrant a refusal to refer the parties to arbitration under Article II(3) NYC, since the agreement would be “inoperative or incapable of being performed.” The Court of Queen’s Bench ruled that the ICAA and not the Alberta Arbitration Act was applicable as the arbitration was to take place in Sweden, thereby falling under the scope of Article I(1) NYC. It further held that the other litigants in the action, who were not party to the arbitration agreements, had raised legitimate claims connected to the main breach of contract that should be tried in the same proceeding. The Court of Queen’s Bench considered that this would render the arbitration clause inoperative under Article II(3) NYC. reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=905&opac_view=6 Attachment (1)
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