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Canada / 08 December 2008 / Canada, Cour supérieure du Québec / Louis Dreyfus S.A.S. v. Holding Tusculum B. V.
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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Henri Alvarez QC / The Implementation of the New York Convention in Canada The Autonomy of Arbitrators, and Fraud Unravels All / 25(6) Journal of International Arbitration 669 (2008) - 2008
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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