Canadian Supreme Court Sends Dispute to Arbitration Despite the Filing of a Defence in Court Litigation
Canada’s highest court, the Supreme Court of Canada, recently considered whether a party had waived its right to rely on arbitration and forum selection clauses by submitting a statement of defence on the merits in an Ontario court litigation in which it also pleaded the clauses. The Court ruled that there had been no waiver.
In Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., 2012 SCC 9, the Supreme Court unanimously upheld the decision of the Ontario Court of Appeal and dismissed the appeal in a short decision.
The Supreme Court said that “when another forum – an arbitration panel, a tribunal or another court – has the exclusive jurisdiction to d [...]
Cargill – Another Chapter in the Legacy of Dallah
As we approach the first anniversary of the UK Supreme Court’s landmark decision in the case of Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan, it is only fitting that we would encounter a case which would cause us to revisit the issue of the proper standard of review for international arbitration awards and that such case would involve a non-English court looking to Dallah for instructive value. Earlier this month in the case of The United Mexican States v Cargill Incorporated, the Ontario Court of Appeal considered Dallah in determining whether to grant Mexico’s application to set aside an ICSID arbitration award granting an American [...]
The Supreme Court of Canada: Pro-Arbitration No More
Anyone considering Canada as the seat of an arbitration or as one among several jurisdictions where recognition and enforcement proceedings could be commenced should pay close attention to the Supreme Court of Canada’s March 18 decision in Seidel v. TELUS Communications Inc., 2011 SCC 15, which appears to mark a philosophical shift in Canadian arbitration law that is as significant as it was unexpected. For foreign practitioners, the key aspects of the decision are: i) the effective abandonment of an interpretive presumption—adopted by the Court in 2003—that a matter is arbitrable unless a statute expressly provides otherwise; ii) the suspicion as to arbitration’s ability to provide [...]
10 Investor-State Awards I Had Hoped to Read in 2010
Last year, around this time, I offered a list of 10 investor-state arbitral awards I hoped to see in 2010.
If time permits, I may do another list for 2011. But, first I thought I’d take a look back at last year’s list and offer a brief update on those cases. Rather, than do all of the heavy-lifting here, I’ll direct readers of this blog to relevant reporting in my Investment Arbitration Reporter newsletter (not to be confused with Kluwer’s ITA newsletter) where appropriate. (You won’t need a subscription to view the articles that are referenced below, as we’ll make them publicly available.)
Without further ado, here’s a run-down of the ten cases from last year.
Suez, Vivendi, Ang [...]
Is the System Working: What Lessons Can Be Learned From A Canadian Trilogy Of Investor Claims (AbitibiBowater, Chemtura, First Quantum Minerals)?
Three different investors, with three different claims, in three different situations, have recently been in the news. All three disputes have a Canadian connection. Two involved claims by foreign investors against Canada, one that settled and one that Canada defeated. The third involves a claim by a Canadian investor against the Democratic Republic of Congo.
Among the lessons learned from these three claims are that good investment treaty protection really is important to foreign investors; where investment protection is in place, it can be shown to be doing its job; and where it is not in place the investor can be in a difficult position if problems arise with the host state.
The outc [...]
To Specialize or Not: How Should National Courts Handle International Commercial Arbitration Cases?
So far in 2010, at least two jurisdictions have established specialized courts to handle international arbitration matters ─ Australia (in the state of Victoria) and India (in Bombay).
Australia: Within Australia’s federal structure, international arbitration matters are in the jurisdiction of state supreme courts. In 2009, Australia’s Parliament gave the Federal Court concurrent jurisdiction over international arbitration. In addition, a practice note recommended the appointment of an “Arbitration Coordinating Judge” for each registry. In January 2010, the Supreme Court of Victoria made such an appointment, creating an arbitration list (“List G”) that centralizes arbitra [...]
