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Canada / 26 June 2020 / Canada, Supreme Court of Canada / Uber Technologies Inc., Uber Canada, Inc., Uber B.V. and Rasier Operations B.V. v. Daniel Heller / 38534
Country Canada Court Canada, Supreme Court of Canada Date 26 June 2020 Parties Uber Technologies Inc., Uber Canada, Inc., Uber B.V. and Rasier Operations B.V. v. Daniel Heller Case number 38534 Applicable NYC Provisions II | II(3) Source 2020 SCC 16 | online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6240&opac_view=6 Attachment (2)
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Country Canada Court Canada, Cour supérieure du Québec Date 10 March 2020 Parties Metso Minerals Canada Inc. and Metso Minerals Industries Inc. v. ArcelorMittal Exploitation Minière Canada and ArcelorMittal Canada Inc. Case number 500-11-056231-190 Applicable NYC Provisions III Source 2020 QCCS 1103 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5932&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 13 December 2019 Parties The Russia Federation v. Luxtona Limited Case number CV-17-11772-CL Applicable NYC Provisions V | V(1) | V(1)(a) Source 2019 ONSC 7558 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5805&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour supérieure du Québec Date 11 December 2019 Parties Société Générale de Banque au Liban SAL v. Rachad Itani Case number 500-17-093234-162 Source 2019 QCCS 5266 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5655&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 08 March 2019 Parties Tianjin Huarong Equity Investment Fund Partnership (Limited Partnership) and Shanghai Liyi Equity Investment Center (Limited Partnership) v. Shuqin Xu Case number CV-18-00602425-00CL Applicable NYC Provisions I | IV | V | V(1) | V(1)(b) Source 2019 ONSC 628 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5501&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 17 January 2019 Parties Jarret Watts v. The Pepsi Bottling Group (Canada), ULC Case number S184838 Source 2019 BCSC 1175 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5654&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Ontario Date 12 July 2018 Parties Joseph Popack and others v. Moshe Lipszyc and Sara Lipszyc Case number C64359 Applicable NYC Provisions V | V(1) | V(1)(e) Source 2018 ONCA 635 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5190&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour du Québec Date 25 May 2018 Parties Anne-Julie Beaumont and Joseph Sebag v. Norwegian Cruise Line Holdings Ltd., Regent Seven Seas Cruises and Daniel Green Case number 500-22-241545-170 Source 2018 QCCQ 6477 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5804&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 23 May 2018 Parties Peipei Li v. Luhua Rao Case number CA45061 Source 2018 BCCA 244 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4971&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 11 April 2018 Parties McHenry Software Inc. v. ARAS 360 Incorporated aka ARAS 360 Technologies Inc. Case number S144039 & S144050 Source 2018 BCSC 586 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5803&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour supérieure du Québec Date 26 March 2018 Parties Hachette Distribution Services (Canada) Inc. v. 2295822 Canada Inc. and Paul Benjamin Case number 500-11-046917-148 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(d) Source 2018 QCCS 1213 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4609&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 30 January 2018 Parties David Heller v. Uber Technologies Inc., Uber Canada Inc., Uber B.V. and Rasier Operations B.V. Case number CV-17-567946CP Source 2018 ONSC 718 | online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5802&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 01 December 2017 Parties Sum Trade Corp. v. Agricom International Inc. Case number S178573 Source 2017 BCSC 2213 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4606&opac_view=6 Attachment (1)
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Country Canada Court Canada, Queen's Bench for Saskatchewan Date 26 October 2017 Parties Parrish & Heimbecker Ltd. v. Dale Bukurak Case number QBG 1070 of 2017 Applicable NYC Provisions I | IV | V Source 2017 SKQB 322 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4608&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 14 September 2017 Parties 1552955 Ontario Inc. v. Lakeside Produce Inc. Case number CV-15-23140; CV-16-23279; CV-16-23483 Source 2017 ONSC 4933 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4607&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Newfoundland and Labrador Date 29 March 2017 Parties KAEFER Industrial Services Ltd. v. Vale Newfoundland & Labrador Limited Case number 201501G4398 Applicable NYC Provisions II | II(3) Source 2017 NLTD(G) 65 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5500&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 21 February 2017 Parties China Citic Bank Corporation Limited v. Shibiao Yan Case number S165830 Applicable NYC Provisions III | V Source 2017 BCSC 596 | online: CanLII
see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4160&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 13 December 2016 Parties China Citic Bank Corporation Limited v. Shibiao Yan Case number S165830 Applicable NYC Provisions III Source 2016 BCSC 2332 | online: CanLII
see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3664&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 28 November 2016 Parties Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A. Case number CV-11386-00CL Source 2016 ONSC 7171 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5653&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 16 November 2016 Parties Entes Industrial Plants Construction & Erection Contracting Co. Inc. v. The Kyrgyz Republic, et al Case number CV-15-11142-00CL Applicable NYC Provisions V | V(2) | V(2)(b) Source 2016 ONSC 7221, online: CanLII
see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3663&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 09 November 2016 Parties Bruce Edwin McMillan v. Milena Maria McMillan Case number CA43329 Source 2016 BCCA 441 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5421&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 20 July 2016 Parties Crystallex International Corporation v. Bolivarian Republic of Venezuela Case number CV-16-11340-00CL Applicable NYC Provisions II | IV | V | V(2) | V(2)(a) | V(2)(b) Source 2016 ONSC 4693 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3662&opac_view=6 Attachment (1)
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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, Federal Court of Canada Date 08 April 2016 Parties Nevsun Resources Ltd. v. Delizia Limited and State of Eritrea Case number T-1157-13 Source 2016 FC 393 | online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5930&opac_view=6 Attachment (2)
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Country Canada Court Canada, Federal Court of Canada Date 08 April 2016 Parties Sunridge Gold Corp. v. Delizia Limited and State of Eritrea Case number T-1157-13 Source 2016 FC 392 | online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5931&opac_view=6 Attachment (2)
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Country Canada Court Canada, Cour supérieure du Québec Date 14 October 2015 Parties Norman Bard et Shirley Bard v. Randal S. Appel Case number 500-11-049248-152 Applicable NYC Provisions I | III Source 2015 QCCS 4752 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3660&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 New Brunswick Date 07 April 2015 Parties 669610 N.B. Ltd., Eric Fisher and Ann Fisher v. Thunder Process Group Inc., Andrew Justason, Terence Bird, Eugene Nowlan and Gordon Neal Case number MM/14/15 Applicable NYC Provisions II | II(3) Source 2015 NBQB 087 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5652&opac_view=6 Attachment (2)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 18 February 2015 Parties Depo Traffic Facilities (Kunshan) Co. v. Vikeda International Logistics and Automotive Supply Ltd. Case number CV-13-483322 Applicable NYC Provisions IV | V | V(2) | V(2)(b) Source 2015 ONSC 999 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3658&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 02 June 2014 Parties Sociedade-de-fomento Industrial Private Limited v. Pakistan Steel Mills Corporation (Private) Limited Case number CA041130 Applicable NYC Provisions I | III | V Source 2014 BCCA 205 | online: CanLII
reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3657&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen’s Bench of Manitoba Date 05 May 2014 Parties Brentwood Plastics Inc. v. Topsyn Flexible Packaging Ltd. Case number CI 12-01-79146 Applicable NYC Provisions II | IV Source 2014 MBQB 97 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5420&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 07 March 2014 Parties Assam Company India Limited v. Canoro Resources Ltd. Case number S127853 Applicable NYC Provisions IV | V | V(1) | V(1)(b) | V(1)(d) | V(2) | V(2)(b) Source 2014 BCSC 370 | online: CanLII
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3656&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 01 October 2013 Parties CE International Resources Holdings LLC v. Yeap Soon Sit, S.A., Minerals Ltd. Partnership and Tantalum Technology Inc. Case number S126437 Applicable NYC Provisions IV | V Source 2013 BCSC 1804 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5419&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour supérieure du Québec Date 19 August 2013 Parties Bombardier Inc. v. The General Directorate for Defense Armaments and Investments of the Hellenic Ministry of National Defense, New TT Hellenic Postbank S.A. and National Bank Of Canada Case number 500-17-078501-130 Source 2013 QCCS 6892 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5418&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 22 July 2013 Parties Sociedade-de-Fomento Industrial Private Limited v. Pakistan Steel Mills Corporation (Private) Limited Case number S112686 Source 2013 BCSC 1304 | online: CanLII
Languages English reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5416&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 17 June 2013 Parties Ontario First Nations Limited Partnership v. Ontario Lottery and Gaming Corporation and Her Majesty the Queen in Right of Ontario Case number CV-12-461369 Source 2013 ONSC 4166 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5415&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Nova Scotia Date 14 June 2013 Parties Rusk Renovations Inc. v. Robert Dunsworth, Ingrid Dunsworth, and Europa Stairways Inc. Case number Hfx No. 389841 Applicable NYC Provisions II | II(1) | III | IV | IV(1) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(1)(e) Source 2013 NSSC 179 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5414&opac_view=6 Attachment (1)
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Attachment (2)
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Country Canada Court Canada, Cour d’appel du Québec Date 29 February 2012 Parties Nearctic Nickel Mines Inc. and Ungava Minerals Exploration Inc. v. Canadian Royalties Inc. Source 2012 QCCA 385 | online: CanLII
Languages English Summary Ungava Minerals Exploration Inc. (“Ungava”) and Nearctic Nickel Mines Inc. (“Neartic”) entered into an agreement with Canadian Royalties Inc. (“CRI”), which included an arbitration agreement providing for arbitration in accordance with the Centre d’arbitrage commercial national et international du Québec. A dispute arose and a sole arbitrator rendered an award ordering, inter alia, specific performance of the agreement by Ungava and Nearctic. CRI presented a motion for homologation before the Cour supérieur du Québec (Quebec Superior Court), which was granted. Ungava and Nearctic appealed, seeking an annulment of the award on the grounds that the arbitrator had exceeded his jurisdiction by rendering conclusions of an injunctive nature, rewriting the contract and ignoring certain contractual provisions. The Cour d’appel du Québec (Quebec Court of Appeal) dismissed the appeal, concluding that the sole arbitrator had not exceeded his jurisdiction. Though it did not directly apply the NYC in reaching its decision, it considered that the philosophy governing the court’s involvement in the arbitral process may be traced to foreign legal sources such as the NYC, which reflects the commercial world’s willingness to promote private dispute resolution. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=962&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Ontario Date 04 October 2011 Parties United Mexican States v. Cargill, Inc. Case number C52737 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(c) Source 107 O.R. (3d) 528, 2011 ONCA 622 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5413&opac_view=6 Attachment (1)
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Country Canada Court Canada, Federal Court of Canada Date 12 September 2011 Parties T. Co. Metals LLC v. The Vessel “Federal EMS”, Canada Moon Shipping Co. Ltd. and Fednav International Ltd. Case number T-1613-08 Source 2011 FC 1067 | online: CanLII
Languages English Summary In 2008, T. Co. Metals LLC (“T. Co”) initiated an action against Canada Moon Shipping Co. (“Canada Moon”) and Fednav International Ltd. (“Fednav”) for damages to T. Co’s cargo while travelling from Brazil to Canada on board the Federal Ems, a ship belonging to Canada Moon. To transport the cargo, Fednav had signed a charter party with Companhia Siderurgica Paulista – COSIPA (“COSIPA”) which contained an arbitration clause providing for the resolution of disputes by three arbitrators in New York. After T. Co. initiated proceedings at the Federal Court of Canada against Fednav and Canada Moon, both filed a claim against COSIPA in the Federal Court. COSIPA then filed a motion seeking a stay of the claim in favour of arbitration in New York, relying on the arbitration clause in the charter party. The motion was dismissed by a prothonotary of the Federal Court, who found that a charter party constituted a “contract for the carriage of goods by water” as listed under Section 46 of the Marine Liability Act (“the Act”) and that, as a result, the jurisdiction of the Federal Court could not be ousted. COSIPA appealed. The Federal Court allowed the appeal and set aside the action. When debating whether “contract for the carriage of goods by water” in Section 46 of the Act was to be interpreted as including charter parties, the Federal Court held that Canada was aware of its international obligations, including its support for international arbitration agreements pursuant to the NYC, when it enacted the Act. For this reason, it considered that the term should be interpreted narrowly so as to allow the arbitration clause from the charter party to be given effect. reverses : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=897&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Ontario Date 20 July 2011 Parties Her Majesty the Queen in Right of Ontario v. Imperial Tobacco Canada Limited and The Ontario Flue-Cured Tobacco Growers’ Marketing Board Case number C52576 Applicable NYC Provisions II | II(3) Source 2011 ONCA 525 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5412&opac_view=6 Attachment (1)
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Country Canada Court Canada, Queen's Bench for Saskatchewan Date 24 June 2011 Parties Subway Franchise Systems of Canada Ltd. v. Cora Laich Applicable NYC Provisions IV | V Source 2011 SKQB 249 | online: CanLII
Languages English Summary The Respondent and Subway Franchise Systems of Canada Ltd. (“Subway”) entered into a franchise agreement (“the Agreement”), which contained an arbitration clause referring all disputes arising under the Agreement to arbitration by a sole arbitrator in Bridgeport, Connecticut. A dispute arose and Subway terminated the Agreement and obtained a favourable arbitral award. It then sought enforcement in Saskatchewan. The Respondent Cora Laich argued that the application for enforcement should be dismissed because she had been incapacitated and unable to attend the arbitration hearing, and that the award was penal in nature and its enforcement would be contrary to public policy. The Saskatchewan Court of Queen’s Bench dismissed the application on the grounds that enforcement of the award would offend public policy. The Court of Queen’s Bench found that Subway had met the requirements necessary to obtain recognition of the award under the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”). The Court considered that because the Respondent had been able to take part in the arbitration hearing via telephone, she had not been incapacitated. It found, however, that Subway had never fully terminated the Agreement and that even during the arbitral proceedings, the parties had maintained their working relationship, with the Respondent remitting royalties to Subway. On this basis, it considered that because Subway did not actually suffer damages, enforcing the award would amount to “double recovery” and would violate public policy within the meaning of Articles 34 and 36 of the UNCITRAL Model Law, which the Court considered were derived from Article V NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=898&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour du Québec Date 21 March 2011 Parties T.I.G. Assembly Inc. v. Multi-Assemblage Inc. Case number 500-22-175962-102 Source 2011 QCCQ 2125 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5411&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Canada Date 18 March 2011 Parties Michelle Seidel v. Telus Communications Inc. Case number 33154 Applicable NYC Provisions II | II(3) Source 2011 SCC 15, [2011] 1 S.C.R. 531 | online: CanLII
Languages English Summary Michelle Seidel entered into a written cellular service contract with TELUS Communications, Inc. (“TELUS”), a cellular phone provider. The standard contract form contained a mediation and arbitration clause that included a waiver of any right to commence or participate in a class action suit against TELUS. Seidel initiated a claim against TELUS in the British Columbia Supreme Court in 2005 under the Business Practices and Consumer Protection Act (“BPCPA”). When she sought to have her claim certified as a class action, TELUS applied for a stay of all proceedings on the basis of the arbitration clause. The trial judge found that TELUS' application was premature because the certification application had not been decided, and denied the stay. TELUS appealed the decision, arguing that the case followed by the British Columbia Supreme Court, the 2004 British Columbia Court of Appeal decision MacKinnon v. Instaloans Financial Solution Centres (“MacKinnon CA”), had been overruled by the 2007 Supreme Court of Canada decisions, Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless Inc. v. Muroff, which both ruled that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. The British Columbia Court of Appeal allowed the appeal and stayed Seidel’s action. Seidel appealed to the Supreme Court of Canada. The Supreme Court of Canada reversed the Court of Appeal in a 5-4 decision, holding that Seidel's class action could go forward. The Court based its ruling upon a finding that the enactment of the BPCPA manifested a legislative intent to prohibit any contractual waiver of "rights, benefits or protections" provided therein and that the remedies offered by private arbitration are different in scope and quality than those offered under the BPCPA. Consequently, the Court held that Seidel’s claims relying on the BPCPA could go forward, while any others would be subject to binding arbitration. The dissenting opinion argued that British Columbia's legislature had manifested its intent to honor arbitration clauses, absent a clear legislative statement to the contrary, by adopting the NYC into domestic legislation. It noted that the requirement of deference to the arbitrator’s jurisdiction is related directly to the role of the court that must, in considering an application for a stay of proceedings, determine whether the agreement is “void, inoperative or incapable of being performed” pursuant to Article II(3) NYC. The Court recognized that the general rule is that arbitrators should be the first to consider challenges to their jurisdiction, and therefore the expressions “void”, “inoperative” and “incapable of being performed” should be interpreted narrowly. It stated that courts should be mindful to avoid an interpretation that makes it possible to sidestep the competence-competence principle and turns the Convention’s “inoperative” exception into a back door for a party wanting to “escape” the agreement. affirms : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=555&opac_view=6 Attachment (1)
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Country Canada Court Canada, Federal Court of Canada Date 10 March 2011 Parties T. Co. Metals LLC v. The Vessel “Federal EMS”, Canada Moon Shipping Co. Ltd. and Fednav International Ltd. Case number T-1613-08 Source 2011 FC 291 | online: CanLII
Languages English reversed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5928&opac_view=6 Attachment (2)
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Edgar Sexton / Looking Out and Looking In: Reconciling Domestic and Internationalist Considerations in the Enforcement and Review of Arbitration Awards in Canada / 27(2) Arbitration International 211 (2011) - 2011
Author(s) Edgar Sexton Source 27(2) Arbitration International 211 (2011) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Canada Worldcat Number Worldcat : 868058381 
ISBN 978-3-642-04885-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=2963&opac_view=6
Country Canada Court Canada, Cour d’appel du Québec Date 10 December 2010 Parties Michel Rhéaume and Michel Rhéaume Investissement Ltée v. Société d’Investissement l’Excellence Inc. and Daniel Riopel and Antoine Ponce Source 2010 QCCA 2269 | online: CanLII
Languages English Summary Rhéaume was to sell his interest in several insurance companies, including that of the respondent, Société d’Investissement l’Excellence Inc. (“Excellence”), to Ponce and Riopel. The parties submitted certain questions related to the purchase to arbitration. Two of the three arbitrators were actually directors of Excellence, the control of which Mr. Rhéaume was to sell to Ponce and Riopel. During a meeting of the Board of Directors of Excellence, at which Rhéaume, Ponce and Riopel were present, a discussion was initiated with respect to the proposed transaction and the members present in the meeting discussed the on-going arbitration. An award was rendered in Québec. Michel Réaume challenged the homologation of the award, which, nonetheless was granted by the Cour supérieur du Québec (Quebec Superior Court). Mr. Rhéaume sought before the Cour d’Appel du Québec (Quebec Court of Appeal) to have the award annulled due to an alleged violation of the obligation of deliberative secrecy. The Cour d’appel dismissed the appeal without directly applying the NYC. However, the Cour d’appel took into account prior decisions and published commentaries referring to the NYC in order to reach its conclusion that an automatic annulment of an award where there had been a flaw in the arbitral procedure was incompatible with the deference that courts should accord to arbitral awards. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=961&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal of Newfoundland and Labrador Date 22 October 2010 Parties M. J. Oppenheim v. Midnight Marine Limited and Miller Shipping Limited Case number 10/07 Applicable NYC Provisions II | II(1) | II(3) Source 2010 NLCA 64 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5410&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Canada Date 20 May 2010 Parties Yugraneft Corporation v. Rexx Management Corporation Applicable NYC Provisions III | V | V(2) | V(2)(b) Source 2010 SCC 19, [2010] 1 S.C.R. 649 | 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 the dismissal of the application on the grounds that the application was time-barred because it was not 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 pursuant to Article V(2)(b) NYC as the arbitral tribunal had refused to hear and deliberate on one of Rexx’s key arguments regarding the illegal takeover of Yugraneft. Yugraneft applied to the Alberta Court of Queen's Bench for recognition and enforcement of the award. The Court found that the claim was time-barred pursuant to the two-year limitation under Section 3(1) of the Alberta Limitations Act (the "Limitations Act"). Yugraneft appealed to the Alberta Court of Appeal, which affirmed the lower court judgment. Yugraneft appealed to the Supreme Court of Canada, arguing that a foreign arbitral award possesses all the characteristics of a judgment because it is an adjudication of a legal dispute, and is therefore subject to the ten-year limitation under Section 11 applying to “judgments.” The Supreme Court of Canada dismissed Yugraneft's appeal and held that time limitations could apply to the recognition and enforcement of foreign arbitral awards even though they are not mentioned in Article V NYC, which sets out an exhaustive list of grounds for refusal to enforce the award. The Court referred to Article III NYC, which stipulates that recognition and enforcement shall be “in accordance with the rules of procedure of the territory where the award is relied upon” and considered that the “rules of procedure” of the jurisdiction in which enforcement is sought should apply, insofar as they do not conflict with the express requirements of the NYC. The Court found that limitation periods constitute procedural rules for the purpose of the NYC and that Article III NYC allows Contracting States to subject the recognition of arbitral awards to a time limit. In reaching this conclusion, it considered (i) that the NYC, and in particular Article III, should be construed in a manner that takes into account the fact that it was intended to interface with a variety of legal traditions; (ii) a study indicating that at least 53 Contracting States, including both common law and civil law States, subject (or would be likely to subject, should the issue arise) the recognition and enforcement of foreign arbitral awards to some kind of time limit; and (iii) that leading scholars in the field take it for granted that Article III NYC permits the application of local time limits. In determining what limitation period, if any, to which Alberta law subjects the recognition and enforcement of foreign arbitral awards, the Court upheld the lower courts’ finding that a foreign arbitral award is not a “judgment” and that a two-year limitation period should apply. According to the Court, only if the conditions for discoverability are met will the limitation period begin to run and thus a claim must be brought within two years after the claimant first became aware of the “injury”. The Court found that in this case, the injury corresponded to Rexx's failure to comply with the arbitral award, which was rendered on 6 September 2002, and therefore the three-month period to commence an annulment action expired on 6 December 2002 and the action commenced by Yugraneft in January 2006 was time-barred. The court did not rule on Rexx's objections based on Article V(2)(b) NYC. affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=554&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 25 March 2010 Parties Wires Jolley LLP v. Peter Wong Case number S098700 Source 2010 BCSC 391 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5927&opac_view=6 Attachment (1)
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Author(s) Alain Prujiner Source 2010 (4) Les Cahiers de l'Arbitrage (The Paris Journal of International Arbitration) 1107 Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Canada Worldcat Number Worldcat : 801419815 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5978&opac_view=6
Country Canada Court Canada, Queen's Bench for Saskatchewan Date 05 May 2009 Parties West Plains Company v. Northwest Organic Community Mills Co-operative Ltd. Applicable NYC Provisions I | III | V Source 2009 SKQB 162 | online: CanLII
Languages English Summary West Plains Company (“West Plains”) and Northwest Organic Community Mills Co-Operative Ltd. (“Northwest Organic”) entered into a purchase contract containing a clause that referred disputes to arbitration at the United States National Grain and Feed Association (“NGFA”). A dispute arose between the parties and West Plains commenced NGFA arbitration. Northwest Organic did not participate in the arbitration. The arbitral tribunal issued a default judgment in favor of West Plains. West Plains then sought enforcement of the award in Saskatchewan pursuant to Article III NYC and Article 35 of the Model Law. Northwest Organic did not participate in the enforcement proceedings. The Saskatchewan Court of Queen's Bench upheld the request for enforcement. It noted that the Saskatchewan Legislature adopted the NYC by the enactment of the 1996 Enforcement of Foreign Arbitral Awards Act (“FAAA”), and adopted the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) by the enactment of the International Commercial Arbitration Act (“ICAA”). According to the Court, the purpose of both statutes was to require that arbitration awards made in accordance with arbitration rules agreed to by the parties would be universally recognized and enforceable by the courts of participating jurisdictions. The Court considered that the proceedings giving rise to the award arose from a contractual relationship which was commercial in nature, as contemplated by Article I NYC. It was also satisfied that the contract between the parties constituted an agreement in writing within the meaning of NYC and that the parties undertook to submit disputes to arbitration by the NGFA. The Court also noted that the procedural requirements for enforcement had been satisfied, as West Plains had filed a certified copy of the arbitration agreement and a certified copy of the contract. The Court considered that there were no grounds for non-enforcement based on Article V. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=577&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour d’appel du Québec Date 04 May 2009 Parties Bombardier Transportation v. SMC Pneumatics (UK) Ltd. Case number 500-09-017986-076 Applicable NYC Provisions II | II(3) Source 2009 QCCA 861 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5409&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for Ontario Date 29 April 2009 Parties Jean Estate v. Wires Jolley LLP Case number C48730 Source 96 OR (3d) 171, 2009 ONCA 339 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5408&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 13 March 2009 Parties MacKinnon and Parsons v. National Money Mart Company Applicable NYC Provisions II | II(3) Source 2009 BCCA 103 | online: CanLII
Languages English Summary Kurt MacKinnon (“MacKinnon”) entered into multiple “Fast Cash Advance” loan agreements with National Money Mart Company (“Money Mart”), each containing a clause referring all disputes to arbitration in accordance with the British Columbia Commercial Arbitration Act. MacKinnon, and others who received similar loans, commenced an action against Money Mart alleging that the cheque cashing fees applied by Money Mart upon repayment of the loans constituted illegal interest and were prohibited by the Criminal Code. Money Mart requested that the dispute be referred to arbitration but MacKinnon refused. Two years after the initiation of court proceedings by MacKinnon, Louise Parsons (“Parsons”) commenced a similar proceding against Money Mart, and the two actions were merged. In 2004, a case management judge ordered the consolidated action be certified as a class action proceeding and thereby dismissed Money Mart’s motions to stay the action in favour of arbitration. These orders were appealed by Money Mart in the same year. The British Columbia Court of Appeal upheld the case management judge’s ruling in its decision (“MacKinnon CA”). Money Mart then applied to the Court of Appeal to overturn MacKinnon CA, arguing that the 2007 Quebec rulings of the Supreme Court of Canada in Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless v. Muroff (“Rogers”) had changed the law by ruling that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. The Court of Appeal held that the rulings in Dell and Rogers, which involved class action proceedings in Quebec, should both apply in British Columbia. It noted that the international and domestic arbitration legislation of both Quebec and British Columbia were based on the NYC and the UNCITRAL Model Law on International Commercial Arbitration (the UNCITRAL “Model Law”) and were therefore not materially different from each other. For example, in Dell the Supreme Court observed that Article 940(1) of the Quebec Code of Civil Procedure “incorporated the essence” of Article II(3) NYC and that all six of the arbitration provisions in the Quebec Code of Civil Procedure could be traced to either the NYC or the UNCITRAL Model Law. They were therefore to be interpreted in a manner consistent with both. In British Columbia, the Foreign Arbitral Awards Act also adopts the NYC in full as a schedule, and Art. 15(2) of the Act closely mirrors the wording of Article II(3) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=900&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 13 March 2009 Parties Michelle Seidel v. Telus Communications Inc. Case number CA036299 Source 2009 BCCA 104 | online: CanLII
Languages English Summary Michelle Seidel entered into a written cellular service contract with TELUS Communications, Inc. (“TELUS”), a cellular phone provider. The standard contract form contained a mediation and arbitration clause that included a waiver of any right to commence or participate in a class action suit against TELUS. Seidel initiated a claim against TELUS in the British Columbia Supreme Court in 2005 under the Business Practices and Consumer Protection Act (“BPCPA”). When she sought to have her claim certified as a class action, TELUS applied for a stay of all proceedings on the basis of the arbitration clause. The trial judge found that TELUS’ application was premature because the certification application had not been decided, and denied the stay. TELUS appealed the decision. TELUS argued that the case followed by the British Columbia Supreme Court, the 2004 British Columbia Court of Appeal decision MacKinnon v. Instaloans Financial Solution Centres (“MacKinnon CA”), had been overruled by the 2007 Supreme Court of Canada decisions Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless Inc. v. Muroff, which both ruled that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. The British Columbia Court of Appeal allowed the appeal and stayed Seidel’s action. It held that Dell and Rogers had superseded MacKinnon CA, even though those cases dealt with arbitration clauses and class action proceedings under Quebec law. The Court of Appeal held that the arbitration and class action legislations of both provinces were broadly similar. It noted that one of the few differences between the two arbitration laws is that, unlike Quebec law, the British Columbia Commercial Arbitration Act is not expressly modelled on the NYC. reversed by : reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=899&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 03 February 2009 Parties Thaddeus Griffin v. Dell Canada Inc. Case number 07-CV-325223D2 Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5407&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour supérieure du Québec Date 08 December 2008 Parties Holding Tusculum B. V. v. Louis Dreyfus S.A.S. Source 2008 QCCS 5904| online: CanLII
Languages English Summary Holding Tusculum B. V. (“Tusculum”) and Louis Dreyfus S.A.S. (“Dreyfus”) entered into a shareholders’ agreement containing a clause providing for arbitration under the Arbitration Rules of the International Chamber of Commerce (“ICC”). A dispute arose concerning breaches of the shareholders’ agreement. An ICC arbitral tribunal was constituted and Terms of Reference were drawn up indicating that Montreal would be the seat of the arbitration. The arbitral tribunal rendered a partial award and a final award. Dreyfus filed a motion before the Cour supérieure du Québec (Quebec Superior Court) for the partial annulment of the award, invoking Article 946.4(3)(4)(5) of the Code de procédure civil (“CPC”) (which mirrors Article V(1)(b)(c)(d) NYC). Dreyfus also invoked and relied upon Articles 18 and 34(2)(a)(ii) of the 1985 UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL Model Law”) and Article V(1)(b) NYC. The Cour supérieure granted Dreyfus’ motion in part. It considered that the arbitral tribunal had not respected its mandate by granting a remedy based on its own view of what was fair, rather than respecting the parties’ agreement. The Court considered that by so doing, the tribunal: (i) violated the rule of audi alteram partem; (ii) dealt with a dispute which was not contemplated by the parties and decided matters beyond the scope of the Terms of Reference; (iii) failed to observe applicable arbitration procedure; (iv) rendered an award that was contrary to public policy; and (v) assumed the role amiable compositeurs without the required express consent of the parties. As a general principle, the Cour supérieure considered that the NYC and the UNCITRAL Model Law are recognized sources for considering and interpreting Québec domestic law provisions where matters relating to extra-provincial or international trade were at issue. In particular, with regard to the violation of the rule of audi alterem parte, the Cour supérieure considered that it was a rule of public policy based, inter alia, on Article 946.4(3) CPC and Article V(1)(b) NYC, and that its violation may lead to the annulment of an arbitral award. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=960&opac_view=6 Attachment (2)
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Country Canada Court Canada, Cour supérieure du Québec Date 08 December 2008 Parties Louis Dreyfus S.A.S. v. Holding Tusculum B. V. Applicable NYC Provisions V | V(1) | V(1)(b) Source 2008 QCCS 5903| online: CanLII
Languages English Summary Holding Tusculum B. V. (“Tusculum”) and Louis Dreyfus S.A.S. (“Dreyfus”) entered into a shareholders’ agreement containing a clause providing for arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”). A dispute arose concerning breaches of the shareholders’ agreement. An ICC arbitral tribunal was constituted and Terms of Reference were drawn up indicating that Montreal would be the seat of the arbitration. The arbitral tribunal rendered a partial award and a final award. Dreyfus filed a motion before the Cour supérieure du Québec (Quebec Superior Court) for the partial annulment of the award, invoking Article 946.4(3)(4)(5) of the Code de procédure civil (“CPC”) (which mirrors Article V(1)(b)(c)(d) NYC). Dreyfus also invoked and relied upon Articles 18 and 34(2)(a)(ii) of the 1985 UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL Model Law”) and Article V(1)(b) NYC. The Cour supérieure granted Dreyfus’ motion in part. It considered that the arbitral tribunal had not respected its mandate by granting a remedy based on its own view of what was fair, rather than respecting the parties’ agreement. The Court considered that by so doing, the tribunal: (i) violated the audi alteram partem rule; (ii) dealt with a dispute which was not contemplated by the parties and decided matters beyond the scope of the Terms of Reference; (iii) failed to observe applicable arbitration procedure; (iv) rendered an award that was contrary to public policy; and (v) assumed the role amiable compositeurs without the required express consent of the parties. As a general principle, the Cour supérieure considered that the NYC and the UNCITRAL Model Law are recognized sources for considering and interpreting Québec domestic law provisions where matters relating to extra-provincial or international trade were at issue. In particular with regard to the violation of the audi alterem parte rule, the Superior Court considered that it was a public policy rule based, inter alia, on Article 946.4(3) CPC and Article V(1)(b) NYC, and that its violation may lead to the annulment of an arbitral award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=959&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal of Alberta Date 05 August 2008 Parties Yugraneft Corporation v. Rexx Management Corporation Source 2008 ABCA 274 | 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 as 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. Rexx appealed. The Alberta Court of Appeal dismissed the appeal and affirmed the decision of the Alberta Court of Queen’s Bench, finding that the application for enforcement was time-barred under the Limitations Act. As such, the Court considered it unnecessary to consider Rexx’s argument that enforcement of the award would be contrary to public policy in Alberta. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=953&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 16 July 2008 Parties Michelle Seidel v. Telus Communications Inc. Case number L050143 Applicable NYC Provisions II | II(3) Source 2008 BCSC 933 | online: CanLII
Languages English affirmed by : reversed by : affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=804&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, Supreme Court of British Columbia Date 26 June 2008 Parties Aradia Fitness Canada Inc. v. Dawn M. Hinze Consulting Ltd. and Dawn M. Hinze Case number S081818 Source 2008 BCSC 839 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5926&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 06 June 2008 Parties Kenneth Smith and Robert Adrien Oriet v. National Money Mart Company and Dollar Financial Group Inc. Source [2008] O.J. No. 2248 | online: CanLII
Languages English Summary The Claimants signed loan agreements with National Money Mart (“Money Mart”) which contained clauses giving Money Mart the right to refer any disputes arising with the borrowers to arbitration. The Claimants initiated an action against both Money Mart and Dollar Financial, a company which they believed controlled Money Mart, alleging that the interest rates charged for the loan repayments violated the Criminal Code. Money Mart brought a motion at the Ontario Superior Court for the action to be stayed and referred to arbitration, which was refused on the grounds that the Claimants had motioned for the certification of their claim as a class action. Money Mart unsuccessfully appealed to the Ontario Court of Appeal, and thereafter sought leave to appeal to the Supreme Court of Canada, which was refused. The Claimants’ motion for certification was granted. In 2007, the Supreme Court of Canada rendered its decisions in Dell Computer Corp. v. Union des consommateurs (“Dell”) and Rogers Wireless v. Muroff (“Rogers”), holding that a class action is a procedural vehicle that does not modify the substantive rights created by an arbitration clause. Relying on these cases, Money Mart again brought an action for a stay in favour of arbitration and for summary judgment. The Superior Court dismissed the motion to stay the action and the motion for summary judgment. Acknowledging the authority in Dell and Rogers, it noted that the court must send the parties to arbitration when a valid arbitration clause existed between them, as in the case at hand. The Superior Court noted that under the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) and the NYC, it was confined to determining whether the arbitration agreement was “null and void, inoperative, or incapable of being performed.” However, it found that the facts of the case corresponded to one of the specific circumstances enumerated in Section 7(2) of the Ontario Arbitration Act which allowed it to refuse to stay proceedings. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=901&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour d’appel du Québec Date 13 May 2008 Parties Roger Coderre and others v. Denis Coderre and others Case number 500-09-016295-065 Source 2008 QCCA 888 | online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5406&opac_view=6 Attachment (2)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 05 May 2008 Parties Bayview Irrigation District #11 and others v. The United Mexican States Case number 07-CV-340139-PD2 Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5405&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal of Alberta Date 13 March 2008 Parties Resin Systems Inc. v. Industrial Service & Machine Inc. Case number 0701-0343-AC Applicable NYC Provisions II | II(3) Source 2008 ABCA 104 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5404&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour d’appel du Québec Date 11 March 2008 Parties Smart Systems Technologies Inc. v. Domotique Secant Inc. Source 2008 QCCA 444 | online: CanLII
Languages English Summary Dominique Secant Inc. (“Secant”) and Smart Systems Technologies Inc. (“Smart Systems”) entered into a contract which contained a clause providing for arbitration in accordance with the 1985 UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”). Disputes arose in 2000 and 2001 and an arbitral award was rendered in New Mexico in favour of Smart Systems, who then applied to a U.S. District Court for an order confirming the award, which it obtained. Secant sought annulment of the award before the Cour supérieure du Québec (Quebec Superior Court). Smart Systems filed a plea and cross-demand for the homologation of both the award and a judgment ratifying the award. However, after the award was confirmed by the U.S. District Court, Smart Systems amended its plea and cross-demand in order to withdraw its request for homologation. The Cour supérieure denied recognition and enforcement because the arbitration award failed to state reasons. Smart Systems then sought the homologation of the award before the Cour d’Appel du Québec (Quebec Court of Appeal). Secant opposed the homologation, arguing, inter alia, that (i) by referring to the UNCITRAL Model Law, the parties had agreed that the arbitrators would render an award that included the reasons for their decision; (ii) the award was beyond the scope of the arbitration agreement; (iii) the award was so imprecise that it could not be enforced; (iv) one of the arbitrators had improperly communicated with Smart Systems on several occasions; and (v) the award was contrary to public policy. The Cour d’appel du Québec denied recognition and enforcement based on the provisions of the Code de procédure civil (“CPC”). The Cour d’Appel agreed with Smart Systems that public policy, as referred to in Article 949 CPC (which mirrors Article V(2)(a)(b) NYC), should be applied with reference to international practice. Therefore, despite the fact that Quebec law required an award to state reasons, the failure to do so is not ipso facto a violation of international public policy. The Cour d’appel considered that the parties, however, had agreed that the award would state reasons through the applicable arbitration rules. It thus concluded that the lack of reasons was contrary to public policy. Additionally, the Cour d’appel considered that even aside from issues of public policy, it would seem manifest that the request could be denied based on Article 950(4) CCP (which mirror Article V(1)(c) NYC), because the arbitrators had cancelled ab initio the parties’ contract when this was not required of them and had awarded punitive damages beyond their jurisdiction. Enforcement could also be denied based on Article 950(5) CPC (which mirrors Article V(1)(d) NYC), because the arbitrator chosen by the appellant had communicated with the appellant while the arbitrators were deliberating. Finally, the Cour d’appel rejected Smart Systems’ contention that Secant could no longer oppose recognition and enforcement because it had failed to appear in the confirmation proceedings before U.S. District Court, where it could have raised this objection. The Cour d’appel held that since Article 948 CPC allowed recognition and enforcement of an award without considering if the award had been confirmed or not, the Court had the power to deny recognition and enforcement even if the award had already been confirmed in another jurisdiction. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=958&opac_view=6 Attachment (2)
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Author(s) Henri Alvarez QC Source 25(6) Journal of International Arbitration 669 (2008) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Canada Worldcat Number Worldcat : 775295909 ISBN 978-3-642-04885-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=2962&opac_view=6
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, Supreme Court of Canada Date 13 July 2007 Parties Dell Computer Corporation v. Union des consommateurs and Olivier Dumoulin Applicable NYC Provisions II | II(3) Source 2007 SCC 34, [2007] 2 S.C.R. 801 | online: CanLII
Languages English Summary Dell Computer Corporation ("Dell"), a computer company headquartered in Toronto with a place of business in Montreal, listed incorrect product prices on its English-language website in April 2003. Dell noticed the error one day later and blocked access to the erroneous order pages. Olivier Dumoulin ("Dumoulin") circumvented the measures taken by Dell by using a deep link that enabled him to access the order pages without following the usual route, ordered a computer at the lower price incorrect price indicated there. When Dell refused to honor Dumoulin's order at the lower price, the Union des consommateurs and Dumoulin filed a motion for authorization to institute a class action against Dell. Dell applied for referral of Dumoulin’s claim to arbitration pursuant to an arbitration clause contained in the terms and conditions of sale, which provided for the arbitration of disputes under the rules of the National Arbitration Forum ("NAF") in the United States, and dismissal of the motion for authorization to institute a class action. The Superior Court of Quebec held that because of the arbitration clause in the terms and conditions, there was a foreign element in the relationship that triggered the application of Article 3149 Civil Code of Québec (CCQ), which prohibits waiver of the jurisdiction of Quebec courts in respect of actions involving, inter alia, a consumer contract if the consumer is domiciled in Québec. Dell appealed and the Court of Appeal of Quebec affirmed the decision. The Supreme Court of Canada overturned the judgments of the lower courts, dismissing the motion for authorization to institute a class action and referring Dumoulin’s claim to arbitration. The Court refused to find that arbitration inherently involves a foreign element that would trigger the application of Article 3149 of the CCQ, and considered instead that arbitration is a neutral institution without a forum and without a geographic basis. The Court then analyzed whether there was a valid arbitration agreement that could bind the parties. It referred to Article 940.1 of the Quebec Code of Civil Procedure, which it considered to "incorporate the essence" of Article II(3) NYC and Article 8 of the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), and which provides that if the parties have an agreement to arbitrate on the matter of the dispute, on the application of either of the parties, the court “shall” refer the parties to arbitration, unless the case has been inscribed on the roll or the court finds the agreement to be null. The Court noted that the increasingly prevalent approach to the competence-competence principle requires the court to limit itself to a prima facie analysis and refer the parties to arbitration unless the arbitration agreement is manifestly tainted by a defect rendering it invalid or inapplicable. The Court rejected the Union des consommateurs' arguments concerning the invalidity of the arbitration agreement on grounds unrelated to the NYC. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=553&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 07 May 2007 Parties Collavino Incorporated v. Tihama Development Authority (TDA) an Organ of the Republic of Yemen Case number 0501 05991 Source 2007 ABQB 212 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5403&opac_view=6 Attachment (1)
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Country Canada Court Canada, Ontario Superior Court of Justice Date 30 November 2006 Parties Xerox Canada Ltd. and Xerox Corporation v. MPI Technologies, Inc. and MPI Tech S.A. Case number 05-CV-301537 Source online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5402&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Canada Date 22 July 2005 Parties GreCon Dimter Inc. v. J.R. Normand Inc. and Scierie Thomas-Louis Tremblay Inc. Case number 30217 Applicable NYC Provisions II | II(3) Source 2005 SCC 46, [2005] 2 S.C.R. 401 | online: CanLII
Languages English Summary The Canadian company J.R. Normand Inc. (“Normand”) bought sawmill equipment from GreCon Dimter Inc. (“GreCon”) in Germany to resell it to Scierie Thomas-Louis Tremblay Inc. (“Tremblay”) in Canada. The sales contract between GreCon and Tremblay included a choice of forum clause providing for the jurisdiction of German courts. GreCon's failure to deliver certain equipment to Normand caused the partial nonperformance of the Normand’s obligations to Tremblay. Tremblay terminated its contract with Normand and commenced court proceedings in Quebec for breach of contract. Normand brought an incidental action against GreCon in the same court. GreCon objected to the Court’s jurisdiction on the basis of the forum selection clause in the sales contract. Both the trial and appellate level courts rejected GreCon’s submission, relying on Article 3139 of the Civil Code of Quebec (“CCQ”), which requires that an incidental action be heard together with the related principal action pending before a Quebec court. With reference to the doctrine of forum non conveniens, the courts at both the trial and appellate levels favored the jurisdiction of the Quebec courts. GreCon appealed the decision to the Supreme Court of Canada. The Supreme Court of Canada granted the appeal and reversed the decisions of the lower courts favoring the jurisdiction of the Quebec courts. The Court gave primacy to the principle of party autonomy and honored the choice of forum provision that GreCon and Tremblay had included in their sales contract. In so doing, it considered the relationship between Article 3139 of the CCQ and Article 3148(2) of the CCQ, which allows parties to derogate from the jurisdiction of Quebec courts in favor of foreign courts or arbitration "in respect of a personal action of a patrimonial nature." The Supreme Court considered that “[t]he interpretation of the provisions in issue, and the resolution of the conflict between them, must necessarily be harmonized with the international commitments of Canada and Quebec”, in particular with the NYC. In its reasoning, forum selection clauses and arbitration clauses are expressions of party autonomy that serve the interest of legal certainty, particularly in international commercial relations. The Court stated that the object and purpose of the NYC, in particular Article II(3) NYC, was to strengthen the recognition and value of arbitration agreements, which confirm[s] the position that the enforcement of an arbitration agreement cannot be precluded by procedural rules relating to actions in warranty.” see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=545&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 08 April 2005 Parties Pan Liberty Navigation Co. Ltd. and Blue Arctic Shipping Co. Ltd. v. World Link (H.K.) Resources Limited Case number CA032234 Source 2005 BCCA 206 | online: CanLII
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5401&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of Newfoundland and Labrador Date 17 December 2004 Parties TMR Energy Ltd. v. State Property Fund of Ukraine and others Case number 2003 01T 3328 Applicable NYC Provisions III | IV | V | V(2) Source 2004 NLSCTD 24 | online: CanLII
Languages English Summary TMR Energy ("TMR") and the State Property Fund of Ukraine ("State Property Fund"), which is an organ of the state of Ukraine, entered into a joint venture agreement. When the State Property Fund did not perform its obligations under the agreement, TMR commenced arbitration in Stockholm and was awarded damages. TMR then registered the award in Canada. Later, the Federal Court issued a writ of seizure and sale against the State Property Fund and, pursuant to this writ, a heavy lift cargo aircraft owned by the state of Ukraine was seized. In parallel, TMR brought an ex parte application for recognition and enforcement of the award in the Supreme Court of Newfoundland and Labrador, which was granted. The State Property Fund and the state of Ukraine filed motions to challenge the recognition and enforcement, arguing that Ukraine had immunity from enforcement according to the State Immunity Act, which TMR had not disclosed at the time the Court heard the applications for recognition and enforcement. TMR, in response, argued that the NYC was "intended to operate as a summary procedure" and referred to the NYC, which is attached as a schedule to the Newfoundland and Labrador International Commercial Arbitration Act, and in particular Articles III and IV NYC, which it argued do not require the party applying for recognition and enforcement of the award to submit extensive documentation and does not impose broad disclosure requirements. The Supreme Court of Newfoundland and Labrador set aside the order granting the award pursuant to Article V(2) NYC, which allows the Court to refuse recognition and enforcement on public policy grounds. The Court held that the applicant in an ex parte application has to exercise utmost good faith, and that TMR's non-disclosure of the potential impact the State Immunity Act could have on the registration, recognition or enforcement of the award was a material fact that justified the award's non-enforcement on public policy grounds. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=805&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, Supreme Court of Newfoundland and Labrador Date 26 October 2004 Parties TMR Energy Ltd. v. State Property Fund of Ukraine and others Case number 2003 01T 3328 Applicable NYC Provisions III | V | V(2) | V(2)(a) | VI Source 2004 NLSCTD 198 | online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5399&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 04 October 2004 Parties Powerex Corp. v. Alcan Inc. Case number CA32159 Applicable NYC Provisions II | II(3) Source 2004 BCCA 504 | online: CanLII
Languages English Summary Powerex Corp. ("Powerex") and Alcan Inc. ("Alcan") concluded a contract for the supply of power. Although Alcan contracted with a subcontractor, it remained fully liable for the performance of the contract, limited to an amount of $100,000,000. When the subcontractor went bankrupt and Alcan was no longer able to perform its duties under the contract, Powerex commenced arbitration in Oregon, U.S., against Alcan and was awarded the maximum liability amount of $100,000,000. Alcan started annulment proceedings with a United States magistrate, then a Federal District Court judge in Oregon, and eventually at the United States Court of Appeals for the Ninth Circuit. At the same time, Powerex sought enforcement of the award in Canada before the Supreme Court of British Columbia. Upon an application by Alcan, the Supreme Court of British Columbia suspended the enforcement proceedings as long as the annulment proceedings were pending with the U.S. magistrate and the Federal District Court judge. Upon a further application by Alcan, the Supreme Court of British Columbia decided to stay the enforcement proceedings while annulment proceedings were pending in the US Court of Appeals for the Ninth Circuit. The Supreme Court of British Columbia held that Alcan nonetheless had to make a security payment in the amount of $100,000,000, and that Powerex had the right to make use of this money as long as they provided security for the amount taken out of this trust. Alcan appealed this ruling to the British Columbia Court of Appeal, contending that the Supreme Court of British Columbia had exceeded its competence rooted in Article VI of the Foreign Arbitral Awards Act (which directly incorporates and whose wording is equivalent to Article VI NYC). The British Columbia Court of Appeal granted Alcan leave to appeal the part of the Supreme Court suspension order that allowed Powerex to receive payment of the award and spend this money in exchange for posting security for its repayment. In the Court of Appeal’s opinion, the appeal raised a question of general importance because the Supreme Court’s decision was the first decision interpreting these provisions implementing the NYC in British Columbia. The Court of Appeal considered that the Supreme Court took an unprecedentedly liberal approach in interpreting the wording of Article VI NYC, and this would have “mark[ed] a departure from international jurisprudence in a field where order and predictability are desirable”. The British Columbia Court of Appeal, however, denied Alcan's request to stay execution on the Supreme Court's order on the grounds that it had the authority to order that a security payment be made. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=800&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour supérieure du Québec Date 20 September 2004 Parties Domotique Secant Inc. v. Smart Systems Techonologies Inc. Case number 500-11-023188-044 Source online: CanLII
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5400&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Queen's Bench of New Brunswick Date 28 July 2004 Parties Adamas Management & Services Inc. v. Aurado Energy Inc. Applicable NYC Provisions V | V(2) | V(2)(b) Source 2004 NBQB 342 | online: CanLII
Languages English Summary Adamas Management & Services Inc. ("Adamas") and Aurado Energy Inc. ("Aurado") concluded an investment agreement providing that disputes would be decided by a sole arbitrator in Switzerland, deciding ex aequo et bono under the Arbitration Rules of the International Chamber of Commerce ("ICC"). A dispute arose as to whether Adamas was entitled to issuance of shares under the agreement. Adamas filed a request for arbitration at the ICC. The sole arbitrator decided the dispute in favor of Adamas and ordered Aurado to issue the shares under the agreement. Adamas applied for enforcement of the award in New Brunswick. Aurado opposed enforcement, arguing that it would be contrary to public policy under Article V(2)(b) NYC (which is directly incorporated into the New Brunswick International Commercial Arbitration Act) because the approval of the Toronto Stock Exchange ("TSX") was required before it could issue any shares, and therefore enforcement could cause Aurado to be held in contempt of the enforcement order through no fault of its own if the stock exchange did not grant the necessary approval. Aurado further argued that the order to issue shares did not fall within any of the categories of the recognition of judgments and orders in New Brunswick and that it was therefore impossible to enforce the award. The New Brunswick Court of Queen's Bench granted enforcement to the award. The Court noted that Adamas had fulfilled all formal requirements for the enforcement application, and that Aurado had not proven any grounds for refusing enforcement. In particular, the Court rejected the claim that enforcement would violate public policy according to Article V(2)(b) NYC, finding that the approval requirement by the TSX, and the consequential risk of being held in contempt, were not contrary to public policy. In the Court's reasoning, it was Aurado’s responsibility to ensure compliance with this requirement and it could have initiated the application process for approval months before enforcement proceedings had been commenced. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=803&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 30 June 2004 Parties Powerex Corp. v. Alcan Inc. Case number L030449 Applicable NYC Provisions VI Source 2004 BCSC 876 | online: CanLII
Languages English Summary Powerex Corp. ("Powerex") and Alcan Inc. ("Alcan") concluded a contract for the supply of power. Although Alcan contracted with a subcontractor, it remained fully liable for the performance of the contract limited to an amount of $100,000,000. When the subcontractor went bankrupt and Alcan was no longer able to perform its duties under the contract, Powerex commenced arbitration in Oregon, U.S., against Alcan and was awarded the maximum liability amount of $100,000,000. Alcan started annulment proceedings with a United States magistrate, then a Federal District Court judge in Oregon, and eventually at the United States Court of Appeals for the Ninth Circuit. At the same time, Powerex sought enforcement of the award in Canada before the Supreme Court of British Columbia. Alcan brought a motion to suspect the enforcement proceedings. The Supreme Court of British Columbia suspended the enforcement proceedings as long as the annulment proceedings were pending with the United States magistrate and the Federal District Court judge. It also decided to stay the enforcement proceedings while annulment proceedings were pending in the U.S. Court of Appeals for the Ninth Circuit. The Court held that Alcan nonetheless had to make a security payment in the amount of $100,000,000, and that Powerex had the right to make use of this money as long as they provided security for the amount taken out of this trust. Alcan appealed this ruling to the British Columbia Court of Appeal, contending that the Supreme Court of British Columbia had exceeded its competence rooted in Article VI of the Foreign Arbitral Awards Act (which directly incorporates and whose wording is equivalent to Article VI NYC). affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=552&opac_view=6 Attachment (1)
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Country Canada Court Canada, Court of Appeal for British Columbia Date 25 February 2004 Parties Eddie Javor v. Luke Francoeur Case number CA030720 Source 2004 BCCA 134 | online: CanLII
Languages English affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5925&opac_view=6 Attachment (1)
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Country Canada Court Canada, Supreme Court of British Columbia Date 10 July 2003 Parties Powerex Corp. v. Alcan Inc. Case number L030449 Source 2003 BCSC 1096 | online: CanLII
Languages English see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5924&opac_view=6 Attachment (1)
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Country Canada Court Canada, Cour d’appel du Québec Date 31 March 2003 Parties La Compagnie Nationale Air France v. Libyan Arab Airlines Applicable NYC Provisions II | II(3) Source online: CanLII
Languages English Summary Compagnie National Air France (“Air France”) and Libyan Arab Airlines (“LAA”) entered into a supply and maintenance agreement that included an arbitration clause referring to the arbitration regulations of the International Air Transport Association. A dispute arose regarding the performance of the contract and was submitted to arbitration. The parties agreed that the seat of arbitration would be Montreal and that the arbitration would be conducted in accordance with the Arbitration Rules of the United Nations Commission for International Commercial Law (“UNCITRAL Rules”). A tribunal issued a partial award dismissing Air France’s objections to jurisdiction based on the non-arbitrability of the dispute. Air France filed proceedings with the Cour supérieur du Québec (Quebec Superior Court) to annul the partial award. LAA filed a motion to dismiss the proceeding. The trial judge concluded that the issue of arbitrability could not be addressed except in the context of a motion to homologate or set aside an award. Air France appealed to the Cour d’appel du Québec (Quebec Court of Appeal) arguing, inter alia, that the arbitral tribunal had exceeded its jurisdiction and the partial award was against public policy. The Cour d’appel dismissed the appeal. It considered, inter alia, that arbitral tribunals enjoy a degree of autonomy, and unless an arbitration agreement is deemed invalid, state courts are obliged to decline jurisdiction over the dispute pursuant to Article II(3) NYC and other international instruments. The Cour d’appel also considered, without referring to the NYC, that Air France’s argument that the arbitral tribunal had not respected transnational public policy was unfounded. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=963&opac_view=6 Attachment (2)
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Country Canada Court Canada, Supreme Court of British Columbia Date 06 March 2003 Parties Eddie Javor v. Luke Francoeur Case number L022829 Applicable NYC Provisions II | II(2) | III | IV | IV(1) | IV(1)(b) | V | V(2) | V(2)(a) | V(2)(b) Source 2003 BCSC 350 | online: CanLII
Languages English Summary The Claimant, Javor, entered into an agreement with Fusion-Crete Products Inc. (“Fusion-Crete”) containing a clause providing for arbitration pursuant to the Rules of the American Arbitration Association. During the course of the arbitration, the arbitrator made a finding that the Respondent, Francoeur, was the alter-ego of Fusion-Crete and ordered the addition of Francoeur as a party to the proceedings and eventually held Francoeur personally liable for damages awarded against Fusion-Crete. Javor sought enforcement before the Supreme Court of British Columbia. Francoeur opposed enforcement on the grounds that (i) the British Columbia Foreign Arbitral Awards Act (“FAAA”), which has as its Schedule and implements the NYC, and the International Commercial Arbitration Act (“ICAA”), which implements the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), did not apply to “non-parties” to the agreement; (ii) the arbitral procedure was not in accordance with the parties’ agreement; (iii) the subject-matter of the dispute was not capable of settlement by arbitration under the laws of British Columbia and the award should therefore not be enforced pursuant to Article V(2)(a) FAAA (which mirrors Article V(2)(a) NYC) and the ICAA; and (iv) the recognition of the award was contrary to public policy pursuant to Article V(2)(b) of the FAAA (which mirrors Article V(2)(b) NYC) and the ICAA. The Supreme Court of British Columbia denied the application to enforce the award. It considered that Javor was required to show that the arbitration award it sought to enforce fell clearly within the provisions of the FAAA or the ICAA. Referring to Articles II, III, IV and V of the FAAA (which mirror Articles II, III, IV and V NYC), and Sections 2(1) and 7(1) of the ICCA, the Court noted the overall similarity between the two statutes, and that they were identically worded in several instances. The Court considered that the existence of an arbitration agreement is the common foundation upon which each of the statutes rests, and that their obvious goal was to allow enforcement of an award against a party signatory to the agreement. On this basis, the Court concluded that it is the intention of both the FAAA and the ICAA to limit enforcement of awards to the parties to the arbitration agreement, and that because Francoeur was not a named party or signatory to the agreement, an award for costs could not be enforced against him. The Court rejected Javor’s argument that the lack of the definition of a “party” in the FAAA entailed that awards could be enforced against persons procedurally added as parties during arbitration. It noted that Article II(2) of the FAAA (which mirrors Article II(2) NYC) referred to an arbitration agreement “signed by the parties” and that the requirement under Article IV(1)(b) FAAA (which mirrors Article IV(1)(b) NYC) to supply an original or certified copy of the arbitration agreement appeared to be directed to the ability of the court to verify the signatory parties and the existence of an arbitration clause within that agreement. The Court accepted Francoeur’s defence to enforcement based on Article V(1)(d) of the FAAA (which mirrors Article V(1)(d) NYC), considering that the agreement of the parties did not provide for the involvement of Francoeur in the arbitration and therefore the procedure employed by the arbitrator was inconsistent with the arbitration agreement. The Court also exercised its discretion to accept Francoeur’s defense to enforcement based on Article V(2)(a) of the FAAA (which mirrors Article V(2)(a) NYC), considering that because Francoeur was not a proper party to the arbitration clause, pursuant to British Columbia law the claim against him for personal liability could not properly have been a subject of the arbitration, but would rather be a matter for judicial determination. Finally, the Court declined to reach a decision concerning Francoeur’s objection that the enforcement of the award would violate public policy pursuant to Article V(2)(b) of the FAAA (which mirrors Article V(2)(b) NYC), considering that it had not been able to gauge sufficiently the strength of the evidence that led the arbitrator to find that Francoeur was the alter ego of Fusion-Crete. affirmed by : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=957&opac_view=6 Attachment (1)
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