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

When Is An Arbitration An International Commercial Arbitration?

Is an arbitration between two domestic companies arising from a contract for a shipment between two foreign countries an “international commercial arbitration” for the purposes of the UNCITRAL Model Rules, particularly if the arbitral agreement requires arbitration in a foreign location?  And if it is, does the domestic court have any residual discretion to stay […]

Continue Reading

Can An Arbitrator Determine The Rights Of Non-Parties?

The Alberta Court of Appeal recently considered an arbitration award in which the arbitrator had decided the rights of non parties to the arbitration.  In MJS Recycling Inc. v. Shane Homes Limited, the Court held that the arbitrator had no authority to determine the rights of non-parties. The court set aside the award and remitted […]

Continue Reading

Does The Competence-Competence Principle Apply To Third Parties To An Arbitration Agreement?

The competence of an arbitral tribunal to determine its own competence has become firmly rooted in Canadian law.  But what happens when the tribunal has to decide issues which directly affect third parties? In Ontario v. Imperial Tobacco Canada Limited, the Court of Appeal for Ontario recently held that, in that circumstance, the principle does […]

Continue Reading

Can A Party Enforce An Arbitration Award In One Court And Litigate The Issue In Another Court?

Arbitration  –  Enforcement  –  Anti-Suit Injunction The Ontario courts have recently considered two issues with respect to the enforcement of an arbitration award: Should the court refuse to enforce an award because the party which seeks to enforce it is taking proceedings in another jurisdiction which contradict the award?  And should an anti-suit injunction be […]

Continue Reading

When Does The Negotiation End And The Limitation Period Begin For An Arbitration Claim?

Arbitration  – Negotiations – Limitation Periods – Contract – Subcontract An arbitration clause in a contract may be written in a way that encourages the parties to settle their differences by negotiation and agreement.  But if the parties attempt to do so and fail, can one of the parties then say to the other:  “Gotcha! […]

Continue Reading

What Happens When A Party Refuses To Arbitrate?

Arbitration – Competence –Competence – Agreement – Enforcement A lawyer must keep track of the general law of contract and arbitration. In turn, many construction cases have settled fundamental principles of the general law. The recent decision of the UK Supreme Court in Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious […]

Continue Reading

Does A Breach of Fiduciary Duty Fall Within An Arbitration Clause?

In the recent decision, St. Pierre v. Chriscan Enterprises Ltd., the British Columbia Court of Appeal considered whether a claim by an owner against the project manager for breach of fiduciary duty fell within the wording of the arbitration clause in the project management agreement. The arbitration clause stated that disagreements “as to the interpretation […]

Continue Reading

Is A Subcontractor Bound By The Arbitration Clause In The Main Contract?

In a judgment delivered on May 6, 2011, Chief Justice Joseph P. Kennedy of the Nova Scotia Supreme Court dealt with a contentious issue relating to arbitration clauses in construction contracts. Is an arbitration clause in the main contract between the owner and the contractor incorporated into a subcontract between the contractor and subcontractor? If […]

Continue Reading

Arbitration Appeal Rights: Think About Them Before Signing A Contract

Owners and contractors will normally insert an arbitration clause into their contract. When they do so, they rarely consider their rights of appeal from an arbitral award. The recent decision of the Ontario Court of Appeal in Kingsway Insurance Company v. Gore Mutual Insurance Company provides a good opportunity to develop a strategy towards appeal […]

Continue Reading

Have You Chosen The Right Forum For An Arbitration?

Arbitration – Appeal My article on May 24, 2011, on Arbitration Appeal Rights: Think About Them Before Signing A Contract, dealt with the rights of appeal from arbitration awards. That article made reference to the appeal rights from arbitration awards in most Canadian provinces, but did not deal with the province of Quebec. This article […]

Continue Reading
Page 7 of 7« First...34567