The selection of an appropriate “seat” is arguably one of the most important decisions parties to an arbitral agreement are called upon to make. Generally, the “seat” refers to the city and the “law of the seat” refers to the seat’s legal jurisdiction (e.g. for an arbitration seated in Toronto, the law of the seat would be the Province of Ontario).
In order to protect the integrity of the arbitration process, arbitrators are generally found to be immune from civil liability arising from their role in an arbitration. Many institutional arbitration rules provide for a limitation of an arbitrator’s liability, and courts have routinely held that arbitrators are immune from legal action with respect to acts performed by them in the exercise of their functions.
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.
Delay is a common complaint of parties in international arbitration. Understandably, many parties would like to resolve their disputes efficiently and without spending an exorbitant amount of time or money. On the other hand, some parties find delay to be in their best interest at certain stages of dispute resolution, which brings truth to the amusing saying “one person’s delay is another person’s due process.”
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.