Tianjin v. Xu, 2019 ONSC 628 (CanLII) involved an application under the International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (the “Act”) for an order recognizing and making enforceable in Ontario an arbitral award of the Chinese International Economic and Trade Arbitration Commission (“CIETAC”).
Respondent’s Defences
The respondent argued that the arbitration award should not be enforced in Ontario because:
- Service: The respondent did not receive notice of the arbitral proceeding or the appointment of arbitrators; and
- Jurisdiction: The Ontario Superior Court of Justice did not have jurisdiction to enforce the arbitral award because the arbitration was not an “international commercial arbitration”.
Service
The court found that there is no requirement that service of notice of the arbitral proceedings or of appointment of arbitrators be effected in accordance with the CIETAC Rules.
Rather, the court opined that the respondent was given “proper notice” of the proceedings and of appointment of the arbitrators, considering that the case materials for the arbitration were sent to the respondent a total of ten (10) times over a period of over ten (10) months to multiple addresses, including the respondent’s address for service under the Investment Agreement, which was the contract under which the reference to arbitration was made.
In rejecting the respondent’s argument, the court cited Article 35(2) of the Model Law on International Commercial Arbitration (“Model Law”), which can be found at Schedule 2 of the Act, and pointed out that to obtain enforcement of an international arbitral award, the applicants are simply required to supply the original award or a copy thereof. The onus then shifts to the respondent to establish one of the defences set out in Article 36 of the Model Law.
The court concluded that it was satisfied that the numerous attempts at service upon the respondent were sufficient to inform her of the arbitral proceedings and provided the opportunity to respond to the arbitration.
Jurisdiction
The respondent submitted that her place of business was China and that her address for service was also in China, which precludes the hearing of the application in Ontario since the arbitration was not an “international commercial arbitration” as defined by the Model Law.
The court found that the respondent was just a shareholder (not the owner/controller of the businesses to which the arbitration related) and found that a last known address in China does not result in an automatic determination of carrying on business in China. The court concluded on the respondent’s own evidence, that she did not have a place of business in China, and so her habitual residence became the governing factor in the jurisdiction analysis.
In putting forward her argument that the arbitration was not an “international commercial arbitration”, the respondent also relied on statements made by the arbitral tribunal that the arbitration was domestic to China and not international. However, the court found that those statements are not determinative of the issue and did not actually address the issue of whether the arbitration was an “international commercial arbitration” as defined by the Model Law.
Conclusion
The court concluded that the arbitration is an international commercial arbitration and allowed the application. The court ordered the respondent to pay the applicants the full amount of the judgment in an amount in Canadian currency sufficient to purchase the judgment amount in RMB.
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