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Canada / 20 May 2010 / Canada, Supreme Court of Canada / Yugraneft Corporation v. Rexx Management Corporation
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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Alain Prujiner / La qualification de la prescription d'une action en reconnaissance et exécution d'une sentence arbitrale internationale ; Jugement de la Cour Suprême du Canada dans l'affaire Yugraneft contre Rexx Management, 240 CSC 19, [2010], 1 RCS 649 / 2010 (4) Les Cahiers de l'Arbitrage (The Paris Journal of International Arbitration) 1107 - 2010
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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