Canada / 08 December 2008 / Canada, Cour supérieure du Québec / Holding Tusculum B. V. v. Louis Dreyfus S.A.S.
|Court||Canada, Cour supérieure du Québec|
|Date||08 December 2008|
|Parties||Holding Tusculum B. V. v. Louis Dreyfus S.A.S.|
2008 QCCS 5904| online: CanLII
|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.|
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