In Larsen v. Citibank FSB[1], the U.S. Court of Appeals for the Eleventh Circuit concluded that the confidentiality clause in an arbitration provision contained in a bank account agreement was “substantively unconscionable”. The Court held that the confidentiality clause worked an information advantage to the bank which could learn from repetitive arbitration proceedings kept secret from one plaintiff customer to the next.

Though this case has to do with a consumer contract of adhesion, signed by many customers, the logic of the decision would seem to apply to any contract which, by the frequency of its signing, affords to one side knowledge of other similar arbitration proceedings while withholding that knowledge from other sides.

Continue Reading Larsen v Citibank FSB: Confidentiality of arbitration proceedings perhaps not assured

In the recent High Court of England and Wales decision, Glencore Agriculture B.V. and Conqueror Holdings Limited, the Commercial Court was asked to consider whether the notice of Arbitration and notice under section 17 of the Arbitration Act (the “Act”) sent via email was considered valid service. Justice Popplewell found that serving to the Claimant’s employee’s email address did not constitute valid service and set aside the final arbitration award.

Continue Reading Glencore Agriculture B.V. and Conqueror Holdings Limited: High Court of England Sets Aside Final Arbitration Award for Sending Arbitration Notice by Email

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