The Ontario Court of Appeal has released its decision confirming that where it is possible to give effect to a mandatory arbitration clause, the court will strive to do so.

As described in our earlier blog post, the plaintiff, a Toronto based company, commenced an action in Ontario against its insurers, Equinox Global Limited and Lloyd’s Underwriters. The policy of insurance contained an arbitration clause with the seat of arbitration in London, England.  The endorsements, which prevailed over the Policy to the extent of any conflict, contained a provision as follows:

In any action to enforce the obligations of the Underwriters they can be designated or named as “Lloyd’s Underwriters” and such designation shall be binding on the Underwriters as if they had each been individually named as defendant. Service of such proceedings may validly be made upon the Attorney In Fact in Canada for Lloyd’s Underwriters, whose address for such service is 1155 rue Metcalfe, Suite 2220, Montreal, Quebec H3B 2V6. (the “Action Against Insurer Clause”)

Continue Reading Arbitration Clause Effective Despite Action Against Insurer Clause: Trade Finance Solutions v. Equinox Global Limited (Take Two)

We all know the majority of arbitration rules impose confidentiality obligations on arbitrators and counsel.  But, they typically do not address possible exemptions on that requirement which may be utilized if arbitrators feel compelled to address issues of illegality by breaking that obligation of confidence.

Obviously an arbitrator or arbitral panel are not in the same position as a judge who can investigate issues of illegality.  The panel has an obligation to maintain the confidentiality of the proceedings.

Continue Reading Illegality and Corruption in International Arbitration: The Role of Arbitrators and Counsel

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