Court Decisions

The court decisions available on this website interpret and apply the New York Convention. These court decisions are in most cases published in the Yearbook Commercial Arbitration since its Volume I (1976). 

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The court decisions available on this website interpret and apply the New York Convention.

  1. Most decisions are reported in the Yearbook Commercial Arbitration, published by ICCA since 1976, and are numbered as in the Yearbook (e.g., US no. 954).

  2. Other decisions are indicated by country, date, and a short name (e.g., UK 18 June 2020 Alexander Brothers).

Court decisions can be searched by country and by topic.

Court Decisions

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  • Excerpt Topics
    CANADA 48

    Superior Court (Commercial Division), Province of Quebec, District of Montreal, 23 December 2022, No. 500-11-060766-223 (500-17-119144-213 before 21 February 2022)

    (CC/DEVAS (Mauritius) Ltd. et al. v. Republic of India)

    105

    The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).

    "Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
    CANADA 47

    Federal Court, Toronto, Ontario, 6 September 2022, Docket: T-445-20

    (Stephanie Difederico et al. v. Amazon.Com, Inc. et al.)

    209 Incorporation by reference and standard conditions
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
  • Excerpt Topics
    CANADA 3 December 2021 Specter Aviation

    Following the winding up of their joint venture, the parties had concluded an agreement providing, inter alia, for the return of a Beechcraft 300 to World Aircraft Leasing (WAL), as well as for ICC arbitration of disputes. Specter and United Mining Supply then attached the aircraft, which was in possession of Mr Laprade in Quebec, claiming that they, rather than WAL, were the owners. The Court of Appeal quashed the first instance attachment decision, finding that the matter should be referred to arbitration, and that the appellants had not waived their right to arbitration by seeking the aircraft’s attachment in Quebec.

    Cour d’Appel, Province of Quebec, Montreal Registry, 3 December 2021, no. 500-09-029311-214

    (Specter Aviation TVPX Aircraft Solutions Inc. and United Mining Supply v. Jean Laprade and World Aircraft Leasing Inc.)

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    CANADA 46

    Supreme Court of British Columbia, 11 August 2021, Docket: S207965

    (Stefan Wittman v. Blackbaud, Inc. et al.)

    226

    Multi-party disputes: The court discusses under which conditions non-signatories are covered by an arbitration agreement entered into by another party.

    Third parties (see also Art. I sub F "problems concerning the identity of the respondent", ¶106)
    CANADA 19 April 2021 Kore Meals

    “In the age of Zoom, is any forum more non conveniens than another? Has a venerable doctrine now gone the way of the VCR player or the action in assumpsit?” The Ontario Superior Court granted the argument of the defendants that the dispute between the parties should be referred to AAA arbitration in Chicago, reasoning that if hearings are held by videoconference, documents filed in digital form, and witnesses examined from remote locations, what is left of any challenge based on the unfairness or impracticality of any given forum? To ask the question, said the Court, is to answer it. 

    Superior Court of Justice, Ontario, 19 April 2021

    (Kore Meals, LLC v. Freshii Development, LLC and Freshii Inc.)

     

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    CANADA 43 B

    The Court granted the undisputed application for recognition and enforcement of an award rendered against Tanzania in a Swedish arbitration under a BIT. In an earlier decision, CANADA 43 A, the Court had held that Tanzania could not invoke sovereign immunity against a Mareva injunction, because by agreeing to the BIT it had consented to arbitration.

    Ontario Superior Court of Justice, Commercial List,  29 January 2021, No. CV-20-00648370-00CL

    (Sunlodges LTD et al. v. The United Republic of Tanzania)

    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
  • Excerpt Topics
    CANADA 44

    Parrish applied for recognition and enforcement of an award rendered by the Appeals Committee of the National Grain and Feed Association (NGFA) in the United States. TSM resisted the application, arguing that there was no agreement in writing between the parties, because they had negotiated by text and email messages; that Parrish failed to meet the procedural requirements for recognition and enforcement by not filing a certified or original copy of the arbitration agreement; and that the NGFA Appeals Committee exceeded the scope of the parties’ submission to arbitration, thereby depriving TSM of the opportunity to present its case on the matter which formed the basis of the award. The Court concluded that it should adjourn the application in order to permit Parrish to file certified copies of the award and the arbitration agreement. The Court was however satisfied that, but for the absence of the certified copies, the application should be allowed. Before reaching its decision, the Court set out the framework for the recognition and enforcement of foreign awards, as established by Saskatchewan and Canadian legislation, the UNCITRAL Model Law and the New York Convention, noting that this framework is generally recognized to have been “an unqualified success”. 

    Court of Queen’s Bench for Saskatchewan, 31 December 2020, QBG 368 of 2020 

    (Parrish & Heimbecker Ltd. v. TSM Winny AG Ltd.)

    001

    The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006. 

    Interpretation of the Convention
    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
    504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    CANADA 43 A

    The Court ruled that Tanzania could not invoke sovereign immunity against the Mareva injunction sought while the application to enforce a Swedish award rendered under a BIT was pending, finding that by agreeing to the BIT Tanzania had consented to arbitration. Further, as the recognition and enforcement of the award was governed by the Ontario law enacting the New York Convention, Tanzania could not oppose to enforcement that the award had not been registered in Tanzania, as allegedly required by its domestic law. It was also irrelevant that Tanzania had not yet passed legislation implementing the Convention. In a later decision, The Court subsequently granted the undisputed application for recognition and enforcement of the award (CANADA 43 B).

    Ontario Superior Court of Justice, Commercial List, 10 November 2020, No. CV-20-00648370-00CL

    (Sunlodges LTD et al. v. The United Republic of Tanzania)

    113

    The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.

    Implementing legislation
    CANADA 45

    Supreme Court of Canada, 26 June 2020, Docket No. 38534

    (Uber Technologies Inc. et al. v. David Heller)

    214-216 Field of application
    Canada 42

    The Court granted recognition of an ICC award rendered in the United States. The issue before the Court was whether the fact that ArcelorMittal had satisfied the monetary order of the award made Metso’s application for recognition theoretical and should lead to a refusal. The Court answered this question in the negative and granted an order recognizing the Award. The Court discussed in depth the distinction between “recognition” and “enforcement” of an award.

    Superior Court (Commercial Division), Province of Quebec, District of Montreal, 10 March 2020, No. 500-11-056231-190

    (Metso Minerals Canada Inc. and Metso Minerals Industries Inc. v. ArcelorMittal Exploitation Minière Canada et al.)

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
  • Excerpt Topics
    CANADA 41

    Canada 41. Tjanijin Huarong Equity Investment Fund Partnership (Limited Partnership) et al. v. Shuqin Xu, Ontario Superior Court of Justice, CV-18-00602425-00CL, 8 March 2019

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
  • Excerpt Topics
    CANADA 40

    Canada 40. Jospeh Popack v. Moshe Lipszyc et al., Court of Appeal for Ontario, Docket No. C64359, 12 July 2018

    514 Ground e: Award not binding, suspended or set aside - "Binding"
  • Excerpt Topics
    CANADA 39

    Canada No. 39. Sum Trade Corp. v. Agricom International Inc., Supreme Court of British Columbia, Docket S178573 (Vancouver Registry), 1 December 2017

    209 Incorporation by reference and standard conditions
    CANADA 38

    Canada No. 38. Parrish & Heimbecker Ltd. v. Dale Bukurak, Court of Queen’s Bench for Saskatchewan, Docket QBG 1070 of 2017, 26 October 2017

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    107

    The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.

    Second reservation ("commercial reservation") (paragraph 3)
    402

    The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.

    Original or copy arbitral award
    403

    The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

    Original or copy arbitration agreement
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    CANADA 37 B

    See also Supreme Court of British Columbia, 13 December 2016 (China CITIC Bank Corporation Limited v. Shibiao Yan) CANADA 37 A

    Supreme Court of British Columbia, 21 February 2017 (China CITIC Bank Corporation Limited v. Shibiao Yan)

    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
  • Excerpt Topics
    CANADA 37 A

    See also Supreme Court of British Columbia, 21 February 2017 (China CITIC Bank Corporation Limited v. Shibiao Yan) CANADA 37 B

    Supreme Court of British Columbia, 13 December 2016 

    (China CITIC Bank Corporation Limited v. Shibiao Yan)

    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    CANADA 36

    Canada 36. Crystallex International Corporation v. Bolivarian Republic of Venezuela, Superior Court of Justice, Ontario, Case No. CV-16-11340-00CL, 20 July 2016

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    402

    The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.

    Original or copy arbitral award
    403

    The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

    Original or copy arbitration agreement
    504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
    519

    Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.

    Ground a: Arbitrability
  • Excerpt Topics
    CANADA 35

    Canada 35. Norman Bard and Shirley Bard v. Randal S. Appel, Cour Supérieure, Chambre Commerciale, Province de Québec, District de Montréal, 14 October 2015

    306

    The court discusses the applicable period of limitation for seeking enforcement of an award.

    Period of limitation for enforcement
    CANADA 34

    Canada 34. Depo Traffic Facilities (Kunshan) Co. v. Vikeda International Logistics and Automotive Supply Ltd., Superior Court of Justice, Ontario, Case No. CV-13-483322, 18 February 2015

    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
    500A Residual power to enforce notwithstanding existence of ground for refusal
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    505 Incapacity of party
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    CANADA 33

    Canada 33. Sociedade-de-fomento Industrial Private Limited v. Pakistan Steel Mills Corporation (Private) Limited, Court of Appeal, British Columbia, 2 June 2014

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    CANADA 32

    Canada 32. Supreme Court of British Columbia, 7 March 2014

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
  • Excerpt Topics
    CANADA 31

    Canada 31. Supreme Court of Canada, 20 May 2010

    306

    The court discusses the applicable period of limitation for seeking enforcement of an award.

    Period of limitation for enforcement
    501

    The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.

    Grounds are exhaustive
    514 Ground e: Award not binding, suspended or set aside - "Binding"
    CANADA 29 C

    See also Court of Appeal for Ontario, 23 December 2008 (Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, et al.) CANADA 29 A

    and

    Superior Court of Justice, Ontario, 29 September 2009 (Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, et al.) CANADA 29 B

    Court of Appeal for Ontario, 22 February 2010

    (Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, et al.)

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    CANADA 30

    Canada 30. Supreme Court of British Columbia, Vancouver Registry, 9 October 2009

    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    CANADA 29 B

    See also Court of Appeal for Ontario, 23 December 2008 (Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, et al.) CANADA 29 A

    and

    Court of Appeal for Ontario, 22 February 2010 (Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, et al.) CANADA 29 C

    Superior Court of Justice, Ontario, 29 September 2009

    (Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, et al.)

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    CANADA 28

    Canada 28. Court of Queen's Bench, Saskatchewan, 5 May 2009

    107

    The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.

    Second reservation ("commercial reservation") (paragraph 3)
    402

    The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.

    Original or copy arbitral award
    403

    The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

    Original or copy arbitration agreement
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
    CANADA 27 B

    See also Supreme Court, British Columbia, Vancouver Registry, 16 July 2008 (Michelle Seidel v. TELUS Communications Inc.) CANADA 27 A

    Court of Appeal, British Columbia, 13 March 2009

    (Michelle Seidel v. TELUS Communications Inc.)

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
  • Excerpt Topics
    CANADA 29 A

    See also Superior Court of Justice, Ontario, 29 September 2009 (Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, et al.) CANADA 29 B

    and

    Court of Appeal for Ontario, 22 February 2010 (Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, et al.) CANADA 29 C

    Court of Appeal for Ontario, 23 December 2008

    (Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, et al.)

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    CANADA 27 A

    See also Court of Appeal, British Columbia, 13 March 2009 (Michelle Seidel v. TELUS Communications Inc.) CANADA 27 B

    Supreme Court, British Columbia, Vancouver Registry, 16 July 2008 

    (Michelle Seidel v. TELUS Communications Inc.)

    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    223

    The court discusses whether a certain dispute could be settled by arbitration, and the law applicable to that determination.

    Arbitrability (see also Art. V(2) sub ground a. "arbitrability", ¶519)
    CANADA 26 B

    See also Court of Queen’s Bench, Alberta, Calgary Registry, 26 September 2007 (Bad Ass Coffee Company of Hawaii Inc. v. Bad Ass Enterprises Inc., et al.) CANADA 26 A

    Court of Queen’s Bench, Alberta, Calgary Registry, 2 July 2008 (Bad Ass Coffee Company of Hawaii Inc. v. Bad Ass Enterprises Inc., et al.)

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    CANADA 25

    Canada 25. Cour d’Appel, Québec, 11 March 2008

    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    522

    Public policy: The court discusses the consequences of the lack of reasons in the award on its recognition and enforcement.

    Lack of reasons in award
  • Excerpt Topics
    CANADA 26 A

    See also Court of Queen’s Bench, Alberta, Calgary Registry, 2 July 2008 (Bad Ass Coffee Company of Hawaii Inc. v. Bad Ass Enterprises Inc., et al.) CANADA 26 B

    Court of Queen’s Bench, Alberta, Calgary Registry, 26 September 2007

    (Bad Ass Coffee Company of Hawaii Inc. v. Bad Ass Enterprises Inc., et al.)

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    CANADA 24

    Canada 24. Supreme Court of Canada, 13 July 2007

    001

    The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006. 

    Interpretation of the Convention
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    CANADA 23

    Canada 23. Court of Queen's Bench, Alberta, 27 June 2007

    306

    The court discusses the applicable period of limitation for seeking enforcement of an award.

    Period of limitation for enforcement
    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
  • Excerpt Topics
    CANADA 22

    Canada 22. Supreme Court of Canada, 22 July 2005

    001

    The court discusses general questions relating to the interpretation of the Convention as an international treaty, also in respect of the methods of interpretation laid down in the 1969 Vienna Convention; the relationship between the New York Convention and the UNCITRAL Model Law and Recommendation 2006. 

    Interpretation of the Convention
    227

    Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

    Concurrent court proceedings ("indivisibility")
    CANADA 21

    Canada 21. Federal Court of Canada, 27 April 2005

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    CANADA 20

    Canada 20. Federal Court of Appeal, 24 January 2005

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
  • Excerpt Topics
    CANADA 19

    Canada 19. Alberta Court of Queen's Bench, Judicial District of Edmonton, 9 December 2004

    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    516

    Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.

    "Set aside"
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    CANADA 17 B

    See also Supreme Court of British Columbia, 30 June 2004 (Powerex Corp. v. Alcan, Inc.) CANADA 17 A

    Court of Appeal of British Columbia, 4 October 2004

    (Powerex Corp. v. Alcan, Inc.)

    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
    CANADA 18

    Canada 18. New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, 28 July 2004

    110

    The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.

    Arbitral award: types
    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
    501

    The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.

    Grounds are exhaustive
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    CANADA 17 A

    See also Court of Appeal of British Columbia, 4 October 2004 (Powerex Corp. v. Alcan, Inc.) CANADA 17 B

    Supreme Court of British Columbia, 30 June 2004

    (Powerex Corp. v. Alcan, Inc.)

     

     

    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
  • Excerpt Topics
    CANADA 14

    Canada 14. Federal Court, 23 December 2003

    105

    The court discusses issues relating to the quality of the parties, as physical or legal persons against whom enforcement of an arbitral award is sought, including the incapacity of a State to enter into an arbitration agreement, and questions relating to sovereign immunity. For the related defenses to enforcement, see Art. V(1)(a).

    "Persons, whether physical or legal" (paragraph 1) (including sovereign immunity)
    106

    The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).

    Problems concerning the identity of a party
    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    CANADA 13

    Canada 13. Supreme Court of British Columbia, 10 July 2003

    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
    CANADA 12

    Canada 12. Supreme Court of British Columbia, 6 March 2003

    106

    The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).

    Problems concerning the identity of a party
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    519

    Public policy: The court discusses cases in which the subject matter of the award was not arbitrable in the enforcement State on public policy grounds.

    Ground a: Arbitrability
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    CANADA 9

    Canada 9. Court of Appeal of Manitoba, 11 December 2002

    504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
  • Excerpt Topics
    CANADA 16

    Canada 16. Supreme Court, Province of Prince Edward Island, Trial Division, 23 March 2001

    106

    The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).

    Problems concerning the identity of a party
    110

    The court discusses the definition of “arbitral award”, and the application of the Convention to the various types of award, including awards on specific performance, awards enjoining a party from certain conduct, declaratory awards, etc. Also, whether preliminary, partial, interim, interlocutory awards, and awards by consent can be enforced under the Convention.

    Arbitral award: types
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    505 Incapacity of party
    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    CANADA 15

    Canada 15. Court of Queen's Bench, Manitoba, 30 June 2000

    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
  • Excerpt Topics
    CANADA 11

    Canada 11. Supreme Court of British Columbia, 11 May 1998

    512 Ground c: Excess by arbitrator of his authority - Excess of authority
  • Excerpt Topics
    CANADA 10

    Canada 10. Supreme Court of British Columbia, 24 March 1997

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
  • Excerpt Topics
    CANADA 8

    Canada 8. Alberta Court of Queen's Bench, 13 July 1994

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    211

    The court discusses issues specific to bills of lading and charterparties, such as whether the subsequent holder of the bill of lading is bound by the arbitration agreement therein and whether the arbitration clause in the charterparty is incorporated into the bill of lading.

    Bill of lading and charter party
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    227

    Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

    Concurrent court proceedings ("indivisibility")
  • Excerpt Topics
    CANADA 7

    Canada 7. Ontario Court of Justice (General Division), Weekly Court, 1 October 1992

    106

    The court discusses issues relating to the identity of the party against whom enforcement of the arbitral award is sought, including: piercing of the corporate veil, succession, assignment, State or State entity, group of companies, agent or principal, etc. For the related defenses to enforcement, see Art. V(1)(a).

    Problems concerning the identity of a party
    107

    The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.

    Second reservation ("commercial reservation") (paragraph 3)
    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    CANADA 6

    Canada 6. Alberta Court of Appeal, 16 January 1992

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
  • Excerpt Topics
    CANADA 5

    Canada 5. Federal Court of Appeal, Winnipeg, Manitoba, 20 November 1991

    113

    The court discusses aspects relating to the implementation of the Convention in a Contracting State: the self-executing nature of the Convention v. the requirement of implementing legislation; the lack of implementing legislation; legislation that diverges from the text of the Convention or is defective under national law. Also, the domestic requirement that a State be included in an official list (“gazetted”) to ascertain reciprocity.

    Implementing legislation
    306

    The court discusses the applicable period of limitation for seeking enforcement of an award.

    Period of limitation for enforcement
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    CANADA 4

    Canada 4. British Columbia Supreme Court, Vancouver, 13 September 1991

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    214-216 Field of application
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
    CANADA 3

    Canada 3. New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, 19 August 1991

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    107

    The court discusses the relevance and determination of the commercial nature of the relationship underlying the award, including in the context of contractual and non-contractual relations.

    Second reservation ("commercial reservation") (paragraph 3)
    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    305

    The court discusses the applicability of this requirement under (domestic) US law – that parties must have expressed in the arbitration agreement their consent that judgment of the court shall be entered upon the award –in respect of Convention awards.

    Entry of judgment clause
    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    914

    The court discusses this general reciprocity clause, which was inserted in the Convention to remedy the absence in the commercial reservation (Art. I(3)) of a federal-state clause allowing Contracting States not to apply the Convention to awards made in a constituent state or province of a Contracting State which was not bound to apply the Convention.

    General reciprocity clause
    CANADA 2

    Canada 2. Alberta Court of Queen's Bench, Judicial District of Edmonton, 14 May 1991

    214-216 Field of application
    227

    Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

    Concurrent court proceedings ("indivisibility")
  • Excerpt Topics
    CANADA 1

    Canada 1. Supreme Court of British Columbia, 28 November 1988

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    218

    The court discusses whether referral of the resolution of disputes to arbitration is mandatory under the Convention and whether mandatory referral is an internationally uniform rule which supersedes municipal law.

    Referral is mandatory