Court of Appeal Dismisses Appeal Pursuant to “Competence-Competence” Principle
In Ciano Trading & Services C.T. v. Skylink Aviation Inc. the Ontario Court of Appeal considered the appeal of an order staying court proceedings pending the arbitration of the dispute. The arbitration clause at issue was part of a Services Agreement that was terminated prior to commencement of the court proceedings. The Services Agreement listed the provisions that would survive termination, but did not specifically address whether the arbitration clause survived termination. The appellant argued that the motion judge should have found that the arbitration clause did not survive termination of the Services Agreement, and therefore should not have stayed the court proceedings. The Court of Appeal disagreed stating that, because it was arguable whether the arbitration clause survived termination of the Services Agreement, it was preferable to leave the issue of jurisdiction to the arbitrator pursuant to the “competence-competence” principle. The Court of Appeal dismissed the appeal. If you require advice … Read More
Court Declines Plaintiff’s Request to Stay Its Own Action in Favour of Arbitration
In Paul Wurth Inc. v. Anmar Mechanical and MAG Engineering, the Plaintiff entered into a contract with MAG Engineering. The contract contained an arbitration clause. Nevertheless, the Plaintiff brought a court action against MAG Engineering for breach of contract. The Plaintiff also claimed against Anmar Mechanical. Anmar Mechanical was not a party to the contract. But the Plaintiff alleged that the services under the contract were to be provided by both MAG Engineering and Anmar Mechanical, and that MAG Engineering was an agent, partner, or joint venturer of Anmar Mechanical. After starting its court action, the Plaintiff brought a motion to stay its action and to require MAG Engineering and Anmar Mechanical participate in binding arbitration. In the alternative, the Plaintiff sought to force only MAG Engineering to participate in arbitration, and to stay its action against against Anmar Mechical pending the outcome of that arbitration. The Judge dismissed the Plaintiff’s motion … Read More
London Court of International Arbitration (LCIA) – New Rules Include Expanded Provisions on Emergency Relief
The London Court of International Arbitration has announced that its new LCIA Arbitration Rules have been formally adopted by the LCIA Court and the LCIA Board of Directors and will come into effect on 1 October 2014. Article 9B of the new LCIA Arbitration Rules – Emergency Arbitrator provides that in the case of emergency at any time prior to the formation or expedited formation of the Arbitral Tribunal , any party may apply to the LCIA Court for the immediate appointment of a temporary sole arbitrator to conduct emergency proceedings pending the formation or expedited formation of the Arbitral Tribunal. By Article 9.14 of the New Rules, Article 9B does not apply where the parties have concluded their arbitration agreement before 1 October 2014 have not agreed in writing to ‘opt in’ to Article 9B, or the parties have agreed in writing at any time to ‘opt out’ of Article 9B. Reference should be had in this regard to … Read More
Arbitration and Enigma: Why it’s better when made up
Getting beyond First Principles Apart from taking part in arbitrations, attending seminars presented by arbitrators and arbitration practitioners, and reading articles, opportunities to learn about arbitration are few and far between. Expose yourself to enough of these sources, and you will find the topics recurring with greater frequency than in other areas of legal practice. Much of it hovers over first principles, although I do not mean to belittle the subject. The basic structure and formulation of arbitrations can involve thinking at a high level. Subjects such as conflicts of interest and bias, avoidance of advocate-arbitrators on panels, and other process topics are tough to grasp because there is no fixed body of practice. Thus, any dialogue about teaching arbitration must acknowledge the following truths: Unlike public court or arbitration decisions, private arbitral awards are not usually published unless there is an appeal or judicial review application to a public … Read More
30 Day Time Limit to Appeal Arbitration Award
The Ontario Court of Appeal decision in R & G Draper Farms (Keswick) Ltd. v. 1758691 Ontario Inc., 2014 ONCA 278, involved a dispute between two Ontario-based farming businesses over the purchase and sale of carrots and carrot chunks. The parties agreed to resolve the dispute through arbitration in accordance with The Fruit and Vegetable Dispute Resolution Corporation (“DRC”) arbitration rules. The arbitrator awarded damages to the respondent. The issue arose when the appellant applied to the Superior Court of Justice to set aside the arbitration award approximately two and a half months later. The Arbitration Act, 1991 (the “Act”) provides for a thirty day time period to appeal the arbitration award while the International Commercial Arbitration Act (the “ICAA”) provides for a longer three month time period. Unfortunately, the DRC rules are silent in respect to which arbitration act may apply. Under s. 2(1) of the Act, the Act applied unless the application of the Act was excluded by law, or the arbitration was … Read More