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War & Peace: Enforcement of International Arbitral Awards in Canada in an Age of Monetary Sanctions

Mon, 2022-11-21 10:32

The Alberta Court of King’s Bench recently provided guidance on the practical application of the economic sanctions imposed by the Special Economic Measures (Russia) Regulations (the “Russia Sanctions”).

When do actions (or inaction) speak louder than words? Justmark Industries Inc. v. Infinitus (China) Ltd., 2022 ONSC 5495

Tue, 2022-11-15 17:09

In Justmark Industries Inc. v. Infinitus (China) Ltd., 2022 ONSC 5495 the Ontario Superior Court of Justice found that in the context of the Model Law, acting in a manner that is inconsistent with an arbitration clause does not in and of itself constitute sufficient waiver of the right to arbitrate.

Off to Arbitration: Federal Court stays Class Action in Support of Arbitration

Thu, 2022-10-27 14:32

In Difederico v Amazon.com, the Federal Court of Canada upheld the competence-competence principle, reinforced the binding nature of contracts of adhesion, and confirmed that an arbitration clause cannot be deemed unconscionable by the circumstances under which an individual seeks to bring a claim, but rather the clause must be unconscionable on its face. Additionally, the Court reinforced the high bar for a finding that an arbitration clause is unconscionable.

Airlines, Alter Egos and Arbitral Awards

Wed, 2022-10-12 15:32

On September 20, 2022, the Québec Court of Appeal in the case of Air India Ltd. c. CC/Devas (Mauritius) Ltd., 2022 QCCA 1264 largely overturned the Superior Court of Québec’s decision enabling shareholders of Devas Multimedia Services (collectively, “Devas” or “the Respondents”) to seize assets in the hands of the International Air Transport Association (“IATA”) that were owed on behalf of the Republic of India. Our analysis of the lower court’s decision can be found: here.

Schreiner v Vistas at Callaghan Ltd, 2022 ABQB 472: Alberta Court of King’s Bench Confirms Narrow Grounds of Appeal for Questions of Law

Wed, 2022-10-05 10:22

In Schreiner v Vistas at Callaghan Ltd, 2022 ABQB 472,[1] the Alberta Court of King’s Bench recently considered, among other things, whether a homeowner should be granted leave to appeal an arbitrator’s decision on the basis that the arbitrator misapprehended the applicable legislation.

The “Single Proceeding Model” Prevails in Ontario…at Least for This Case

Wed, 2022-09-28 08:48

In Mundo Media Ltd. (Re),2022 ONCA 607, the Court of Appeal for Ontario (the “Court of Appeal”) dismissed a motion for leave to appeal the motion judge’s decision in Royal Bank of Canada v. Mundo Media Ltd.,2022 ONSC 2147. This decision addressed the tension between a contractual arbitration clause versus the “single proceeding model” under a receivership.

First Appeal Under the New B.C. Arbitration Act: Arbitrator’s Material Misapprehension of Evidence Is an Appealable Legal Error

Wed, 2022-09-21 09:28

In Escape 101 Ventures Inc. v. March of Dimes Canada, 2022 BCCA 294 (“Escape”), the first appeal under British Columbia’s new Arbitration Act, S.B.C. 2020, c. 2 (the “Act”), the B.C. Court of Appeal (the “BCCA”) held that an arbitrator’s material misapprehension of evidence constitutes an extricable legal error subject to appellate review, and that such an error need not be apparent on the face of the arbitrator’s award. The decision provides useful guidance on the permitted scope of an appeal of a domestic commercial arbitration award under the Act.[1]

The threshold for setting aside an arbitral decision remains high

Wed, 2022-09-14 08:59

The recent decision of NDK Ltd v HUO Holding Ltd [2022] EWHC 1682 (Comm) is evidence of English courts’ continued support for arbitration and the significant hurdler one faces to appeal arbitral awards. In this decision, s. 67 challenges of the Arbitration Act 1996 (the “Act”) were rejected by the Commercial Court (the “Court”).

Taking the Right Steps: the importance of meeting contractual pre-conditions in dispute resolution agreements – H. R. Doornekamp Construction Ltd. v. Canada (Attorney General) (Department of Public Works and Government Services), 2022 ONSC 2247

Thu, 2022-09-08 08:54

In H. R. Doornekamp Construction Ltd. v. Canada (Attorney General) (Department of Public Works and Government Services) (“Doornekamp”), the Ontario Superior Court held that parties are required to follow conditions precedent set out in the dispute resolution framework of their contracts. The decision demonstrates the importance of complying with stepped or staged dispute resolution clauses.

Artificial Intelligence and Arbitration

Wed, 2022-08-31 11:09

Artificial intelligence (“AI”) systems assist humans in many facets of society, including in the legal industry. The inherent flexibility of arbitration allows arbitration counsel and arbitrators to be among the vanguard of the legal profession in adopting artificial intelligence and other technologies.

Manifest Unfairness – the Alberta Court of Appeal Clarifies the Test

Thu, 2022-08-18 07:58

In ENMAX Energy Corporation v TransAlta Generation Partnership, 2022 ABCA 206, the Alberta Court of Appeal (the “Court”) provided insight into what constitutes "manifest unfairness” within an arbitration procedure sufficient to deprive a party of presenting a case and warranting set aside of the arbitration award pursuant to section 45(1)(f) of the Arbitration Act, RSA 2000, c A-43 (the “Act”).

Pokémon Go Catches a Win in Enforcing Arbitration Clause

Wed, 2022-08-10 12:30

In Petty v Niantic Inc., 2022 BCSC 1077, the British Columbia Supreme Court addressed the enforceability of arbitration clauses in consumer transactions, providing guidance on drafting measures to ensure an arbitration agreement survives challenges on grounds of unconscionability and public policy.