Thomas G. Heintzman, O.C., Q.C., FCIArb

Can The Parties Contract Out Of The UNICITRAL Model Law?

The Model Law of the United Nations Commission on International Trade Law (UNCITRAL) applies to international commercial arbitration agreements and awards. The Model Law has been adopted in all the provinces and territories of Canada, For instance, the Model Law has been adopted in the Ontario International Commercial Arbitration Act (ICCA). Under article 34 of […]

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Is The Commencement Of An Arbitration Claim Also The Commencement Of An Arbitration Counterclaim?

In a recent English decision, the court held that the commencement of an arbitration by the claimant could also amounted to the commencement of the arbitration of any counterclaim. In Glencore International AG v (1) PT Tera Logistic Indonesia (2) PT Arpeni Pra, the English court held that if the notice given by the claimant, […]

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Can An Arbitral Tribunal Summons The Decision-Makers Of A Public Authority?

When a contract dispute between a public authority and a private party proceeds to arbitration, can the private party inquire into the process or reasoning that led to public authority’s decision in question? For instance, if the public authority decides to terminate a construction contract, or to award a tender to one bidder, can an […]

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A Mediation Obligation Is Enforceable Says The Ontario Court Of Appeal

Is a person bound to mediate before commencing an action or arbitration if the contract or applicable statute requires mediation? Or should an obligation to mediate only become effective after an action or arbitration has been commenced? And if mediation is a pre-condition to suing or arbitrating, does the limitation period run before the mediation […]

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ULCC Working Group Issues Discussion Paper on a new Uniform International Commercial Arbitration Act

In January 2013, a Working Group of the Uniform Law Conference of Canada (“ULCC”) issued a Discussion Paper with respect to proposals for a new Uniform International Commercial Arbitration Act. The Discussion Paper is intended to generate consultations by May 2013 and final approval by the ULCC in August 2013.  Background to the Discussion Paper […]

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Six Points To Consider Before Commencing An Arbitration

On October 10, 2012, I gave a speech at an Advocates’ Society program.  The program was  entitled Arbitration is the New Black.  My presentation focused on seven issues which should be addressed when a party is contemplating the commencement of an arbitration. Starting the arbitration seems like the easiest thing in the world.  After all, […]

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Can Someone Be Compelled To Arbitrate By Estoppel?

Can the conduct of the parties after they have signed a commercial contract influence the interpretation of the arbitration agreement contained in that contract? If they take one position during the performance of the contract with respect to whether a dispute is arbitrable, can they be estopped from asserting to the contrary when a dispute […]

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When Does An Arbitral Limitation Period Commence?

An arbitration is usually considered to be a less formal type of dispute resolution than court litigation.  For this reason it may be thought that less formal rules about limitation periods apply to arbitrations.  If you had this impression, then the recent decision of the Ontario Court of Appeal in Penn-Co Construction Canada (2003) Ltd. […]

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Can An Arbitration Award Survive Fraud?

When material evidence tendered to an arbitral tribunal is fraudulent, we expect the court having jurisdiction to be very inclined to set the award aside.  But as the recent decision of the English High Court in Chantiers de l’Atlantique S.A. v. Gaztransport & Technigaz S.A.S. demonstrates, “it ain’t necessarily so.”  In that case the award […]

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No Appeals From Arbitrator’s Interim Decision Unless It Is A Final Order

The Ontario Court of Appeal has recently considered whether any appeal may be taken from a decision of an arbitral tribunal which is made prior to the final award. The Court held that no such appeal may be taken from such a decision, except if the decision amounts to a “final” order.  The decision appears […]

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