Canada / 28 July 2004 / Canada, Court of Queen's Bench of New Brunswick / Adamas Management & Services Inc. v. Aurado Energy Inc.
| 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. |
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Attachment (1)
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