The question of whether a barrister is a person “with not less than 10 years’ experience of insurance or reinsurance” for the purposes of a standard form arbitration clause was recently considered at the High Court of England and Wales. In Tonicstar Ltd. v Allianz Insurance PLC and Sirius International Insurance CorporationJustice Teare, bound by an unreported decision, determined the appointed arbitrator was not qualified despite more than 10 years’ experience as a lawyer in insurance and reinsurances disputes.

Continue Reading Tonicstar Ltd. v Allianz Insurance PLC and Sirius International Insurance Corporation: Court determined appointed QC not qualified as arbitrator

On August 30, 2017 the Newfoundland and Labrador Supreme Court Trial Division released its decision in Newfoundland and Labrador v ExxonMobil Canada Properties et al, dismissing the Province’s application to set aside an arbitral award.[1]

The arbitral award, delivered in December of 2015 by a panel of three arbitrators (the “Award”), confirmed the deductibility for royalty calculation purposes of certain operating insurance costs individually acquired by certain oil companies with an interest in the Hibernia Project.[2]

The Court dismissed the Province’s set-aside application and affirmed the Award on the basis that: (1) the parties had deliberately contracted out of the set-aside provisions in the provinces’ Arbitration Act;[3] and (2) the parties’ agreement already established a clear procedure for reviewing the arbitral award. In this decision, Stack J. writes at length about party autonomy as it relates to contracting out, primarily finding that “sophisticated entities…do not require the aid of the Court to protect them from their own decisions”.[4]

Continue Reading Newfoundland v ExxonMobil: Court dismisses set-aside application calling parties “well-advised, sophisticated”

On May 18, 2017, the United States served notice on Mexico and Canada that it intended to renegotiate the North American Free Trade Agreement (“NAFTA”).  The first round of negotiations is scheduled to begin in Washington D.C. on August 16th continuing to August  20th.

On July 17, 2017 the US Trade Representative (“USTR”) released a document entitled “Summary of Objectives for the NAFTA Renegotiation”.  This document sets out the goals of the United States for revisions to NAFTA (the “US Objectives”).  The US Objectives are subdivided into different categories, with each one a major component of the NAFTA negotiations.

In response to the release of the US Objectives, the Canadian government has decided to extend indefinitely the consultation period which was set to expire on July 18, 2017.  Any Canadian person or organization is free to provide comment on Canada’s objectives at this time.

Continue Reading Arbitral Dispute Resolution in Flux: US Positions in NAFTA Renegotiations

At first glance, international parties looking to do business in Canada may think that the provincial arbitration regimes are more lenient in granting appeal rights than the UNCITRAL rules.  Upon closer review, however, there is a clear movement in Canadian courts to grant increased deference to arbitrations and arbitral decisions.  Accordingly, in terms of appeal rights, there may not actually be much of a difference in the application of the provincial arbitration acts and the UNCITRAL rules. Continue Reading Arbitrating in Canada? Don’t Count on Judicial Oversight

Class arbitrations are commonly hailed as the “next big thing” in the realm of private dispute resolution. Their advantages would be many: class arbitrations would, in much the same way as class actions, provide a procedural vehicle for individuals to assert their rights in cases where individual damages may be small but the collective liability is large, while also avoiding the often delay-plagued and overburdened civil justice system and the costs of litigation. Class arbitrations, may, in certain ways, be better than class actions at achieving the goals of improved access to justice, judicial economy, and behaviour by taking advantage of the efficiencies built into arbitration as a judicially-sanctioned means of alternative dispute resolution.

Continue Reading The Perennial (Unrealized) Promise of Class Arbitration

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.

Continue Reading Hong Kong and Singapore march towards more (and more regulated) third party funding in international arbitration

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.

Continue Reading Insurance Endorsement Becomes Chink in the Armour of an Arbitration Clause: Trade Finance Solutions v Equinox Global Limited

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.

Continue Reading Canada Begins NAFTA Consultations

Eli Lilly v Canada[1] 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.

Continue Reading First in Class and Going Back to Basics – Eli Lilly v Canada NAFTA Dispute

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.

Continue Reading Avoiding Limitation of Liability Clauses in Contracts: Lessons from Two International Arbitrations