The role of third party funders in international arbitration has recently undergone an important evolution and expansion. An increasing variety of companies are now looking to third party funding as a means of financing their arbitral disputes. Correspondingly, more companies now view funding arbitration and litigation as a potentially lucrative investments. This increase and expansion in the use of third party funding, however, engages both new and old concerns about the role of the third party funder in the legal process. Different jurisdictions have addressed these concerns in different ways.
The Ontario Superior Court of Justice recently delivered a brief decision which placed an important caveat on the enforceability of arbitration clauses.
As discussed in previous posts, there is little doubt that mandatory arbitration clauses are given considerable deference by the courts in Canada. The fly in the ointment for the defendants in Trade Finance Solutions v Equinox Global Limited, 2016 ONSC 7988, who were hoping to enforce an arbitration clause, was that their insurance agreement with the plaintiff included both a mandatory arbitration clause and an endorsement addressing certain steps to be taken in the event of a court action.
In the June 3, 2017 edition of the Canada Gazette – Part I, Vol. 151, No. 22 (the “Consultation Notice”), Canada officially announced the start of consultations for the renegotiation and modernization of the North American Free Trade Agreement (“NAFTA”). Concerned parties may make written submissions on or before July 18, 2017.
These consultations come on the heels of US President Donald Trump’s May 18, 2017 official notice to the US Congress and the leaders of Canada and Mexico that it is his government’s intention to either reopen NAFTA for negotiation or exit it altogether. This is an important opportunity for industry and stakeholders to provide input to the Canadian government on key trade and investment issues in all three NAFTA countries.
Eli Lilly v Canada is the first final patent law decision in international investment arbitration brought under Chapter 11 of the North American Free Trade Agreement (“NAFTA”). In this regard, it provides insight into likely approaches to future arbitrations seeking to challenge national jurisprudence under NAFTA or other trade agreements.
Limitation of liability clauses in contracts are approached very differently in Canadian law and U.S. law. Under Canadian law, such clauses are almost always enforced in commercial transactions, and are exceedingly difficult to get around for plaintiffs whose claims exceed the stipulated damages. Under U.S. law, by contrast, such clauses are not enforceable in contracts for the sale of goods if the result would be a “failure of essential purpose”. This difference between the two legal regimes has important implications for the drafting of contracts for cross-border transactions, and for litigating cross-border contractual disputes.
The High Court of Delhi in India recently enforced an international arbitral award arising from the London Court of Arbitration between a Japanese and an Indian entity. Both the size of the award and the court’s willingness to enforce it in India against an Indian corporation make this an important decision.
A recent decision from the Paris Court of Appeal raises interesting questions about the role of the adverse inferences doctrine in international arbitration.
Although the Court was clear in stating that the majority of arbitrators on the International Chamber of Commerce (“ICC”) panel based their decision on the exhibits in front of them, the decision has potentially widened the scope and applicability of the adverse inferences doctrine.
The Divisional Court recently upheld the Ontario Superior Court’s decision in T. Films S.A. v. Cinemavault Releasing International Inc. (“T. Films”) which granted recognition and enforcement of a successful arbitral plaintiff’s award and crafted an enforcement remedy using other legal tools (the oppression remedy and breach of trust) to foil the arbitral defendant’s “shell game” tactics. Corporate affiliates and a director were ultimately held liable for the arbitral award. These tools should be considered by parties seeking enforcement in Ontario.
New rules (the “ICC Rules”) for arbitration in the International Chamber of Commerce (“ICC”) came into force on March 1, 2017.
The ICC Rules set out a new procedure for expedited arbitrations. The expedited procedure provides for arbitrations to be concluded in six months for claims not greater than US $2 million or where the parties have “opted in” to use this new process.
On March 22, 2017, the Ontario government enacted the International Commercial Arbitration Act, 2017 (“ICAA 2017”) as part of broader legislation to reduce regulatory burdens on businesses and achieve costs savings for government. ICAA 2017 replaces a previous version of the law enacted in 2006 (“ICAA 2006”).