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 Corporation, Justice 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.
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.
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.
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; 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”.
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.
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.
In Judgment No. 102/2017, the Civil Chamber of the Spanish Supreme Court (Tribunal Supremo) (the “Supreme Court“) dismissed an appeal of two high profile arbitrators (the “Arbitrators”) ordering them to return to German athletic apparel multinational PUMA SE (“Puma”) all fees, plus interest and costs, received from Puma during an ad hoc arbitration seated in Madrid in 2010.
An agreement to arbitrate has long been considered one of the most powerful means for commercial entities to control their dispute resolution. The arbitration clause allows businesses to ensure that they maintain control over the process for dispute resolution and, importantly, over public access to the details of any dispute which may arise. Though the wording of a particular arbitration clause is important, as it governs the scope of disputes which may be sent to arbitration, the strength of arbitration clauses can be gauged by how they are treated in the courts and legislatures of Canada.
In Jacob Securities v Typhoon Capital, 2016 ONSC 604 (“Jacob 1”) the Ontario Superior Court dismissed an application challenging the legitimacy of an international arbitration Final Award and the awarding arbitrator’s impartiality.
The Court then, in Jacob Securities v Typhoon Capital, 2016 ONSC 1478 (“Jacob 2”), ordered the unsuccessful applicant to pay partial indemnity costs for what the Court called a “baseless” application. Continue Reading Ontario Court Dismisses Application to Set Aside Award, then Punishes Applicant With Indemnity Costs for “Baseless” Challenge to Arbitrator’s Impartiality
In Touton Far East Pte Ltd v Shri Lal Mahal Ltd (formerly Shivnath Rai Harnarain (India) Ltd), EWHC 1765 (Comm), the High Court of Justice determined that a post-judgment worldwide freezing order related to a GAFTA arbitration award, should continue indefinitely until payment of the judgment or a further order was made.