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

The High Court of Delhi in India recently enforced an international arbitral award arising from the London Court of Arbitration between a Japanese and an Indian entity.  Both the size of the award and the court’s willingness to enforce it in India against an Indian corporation make this an important decision.

Continue Reading Indian Court Enforces $1.17B Billion USD Arbitral Award in Favour of Japanese Telecommunications Corporation

A recent decision from the Paris Court of Appeal raises interesting questions about the role of the adverse inferences doctrine in international arbitration.[1]

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.

Continue Reading Paris Court of Appeal Potentially Increases Scope of the Doctrine of “Adverse Inferences”

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.[1] Corporate affiliates and a director were ultimately held liable for the arbitral award. These tools should be considered by parties seeking enforcement in Ontario.

Continue Reading Enforcement Remedy Crafted by Ontario Court to Foil “Shell Game” Tactics

New rules (the “ICC Rules”) for arbitration in the International Chamber of Commerce (“ICC”) came into force on March 1, 2017.

The ICC Rules set out a new procedure for expedited arbitrations. The expedited procedure provides for arbitrations to be concluded in six months for claims not greater than US $2 million or where the parties have “opted in” to use this new process.

Continue Reading ICC Arbitration Rule Changes: Will The New Expedited Process Catch On?

On March 22, 2017, the Ontario government enacted the International Commercial Arbitration Act, 2017 (“ICAA 2017”) as part of broader legislation to reduce regulatory burdens on businesses and achieve costs savings for government. ICAA 2017 replaces a previous version of the law enacted in 2006 (“ICAA 2006”).

Continue Reading Ontario’s International Commercial Arbitration Act Gets a Makeover

In Venezuela Holdings et al v Bolivarian Republic of Venezuela (“Venezuela Holdings”)[1] an ad hoc Committee for the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”) nullified part of an arbitration award issued by an ICSID Tribunal that required the Government of Venezuela to pay $1.4 billion to certain subsidiaries of ExxonMobil (collectively, “ExxonMobil”). The arbitration award largely reflected compensation resulting from the nationalization one of ExxonMobil’s oilfield projects in 2007. However, on appeal the Committee held that the Tribunal erred in its approach to a price cap to compensation, which rendered the arbitral award a nullity. Venezuela Holdings, therefore, marks a victory for resource-rich governments and sends a cautionary note to foreign investors.

Continue Reading Watch your choice of law clause: the World Bank annuls a $1.4 billion damages award