Category: Arbitration

EU’s Top Court Rules Investment Protections Under CETA are Compatible with EU Law

May 9, 2019

In Opinion 1/17 (CETA Ruling) on the Comprehensive Economic and Trade Agreement (CETA), the European Court of Justice (ECJ) ruled that the investment protections under CETA, signed by Canada and the European Union, are compatible with EU law. The decision marks a welcome departure from the landmark Achmea v. Slovak Republic decision, in which the ECJ effectively invalidated all 196…

Supreme Court Enforces Arbitration Clause and Stays Business Customer Claims in Class Action

April 10, 2019

On April 4, 2019, a majority of the Supreme Court of Canada (SCC) in TELUS Communications Inc. v. Wellman (Wellman) decided that business customer claims in a class action should be stayed pursuant to arbitration clauses in the standard terms and conditions of those customers’ contracts. It further concluded that the Ontario Arbitration Act did not provide courts with jurisdiction…

Court of Appeal for Ontario Invalidates Foreign Arbitration Clause in Standard Form Contract

January 8, 2019

The Ontario Court of Appeal (Court) has unanimously overturned the lower court’s decision in Heller v. Uber Technologies et al. that stayed a proposed class action against Uber Technologies Ltd. (and related companies, together, Uber) on the basis of a mandatory foreign arbitration clause in the driver’s services agreement. Undertaking a contextual analysis, the Court concluded that the foreign arbitration…

Arbitration Demystified

November 28, 2018

Arbitration has a number of advantages and some disadvantages for the resolution of domestic and international commercial disputes. This interactive session is intended to answer questions that in-house legal and business personnel engaged in arbitration often have or might wonder about. It will also focus on practical considerations that influence the choice of litigation or arbitration, or that affect process…

USMCA Eliminates Investor-State Arbitration for Canada – What It Means for Investors

October 4, 2018

On September 30, 2018, Canada, Mexico and the United States announced that they had reached an agreement on a new treaty, the United States-Mexico-Canada Agreement (USMCA), which will replace the North American Free Trade Agreement (NAFTA) that has been in force since 1994. While the trade provisions of the USMCA have been garnering the most attention, the USMCA contains notable changes…

EU Top Court Rules EU Investment Arbitration Tribunals Are Incompatible with EU Law: Implications for Investors

May 15, 2018

In Slovak Republic v. Achmea B.V. (Achmea), the European Court of Justice (ECJ) ruled that the existence of an independent arbitral tribunal established under a bilateral investment treaty (BIT) between EU Member States is fundamentally incompatible with EU law. The decision may effectively invalidate the 196 BITs currently in force between EU Member States. For Canadian and other non-EU parties,…

Careless Whispers: Ex Parte Communications Lead to Overturned Arbitration Award

May 3, 2018

In its recent decision in Hunt v. The Owners, Strata Plan LMS 2556, the British Columbia Court of Appeal (BCCA) held that private communications between an arbitration panel and only one party to the arbitration can give rise to a reasonable apprehension of bias, rendering the arbitration award void and unenforceable.   BACKGROUND The arbitration was between the owners of a…

International Commercial Arbitration Act Amendments to Make B.C. Even More Arbitration-Friendly

April 10, 2018

On April 9, 2018, the Government of British Columbia introduced Bill 11, International Commercial Arbitration Amendment Act, to amend the International Commercial Arbitration Act (ICAA), which has been in effect since 1996. The amended ICAA will include new provisions that are designed to align the legislative regime in British Columbia with current international best practices and to make B.C. a more desirable venue for…

Two Recent Decisions Affirm International Arbitration Clauses Will Be Enforced

February 22, 2018

Two recent decisions reinforce the willingness of Ontario courts to enforce arbitration clauses, apply the competence-competence doctrine and refer any disputes regarding an arbitrator’s jurisdiction to the arbitrator for resolution. The competence-competence doctrine is an internationally recognized principle that an arbitral tribunal has the power to determine its own jurisdiction. In Ontario, the doctrine has been enacted into both section…

B.C. Supreme Court Extends Arbitration Agreement to Non-Signatories

November 29, 2017

In Northwestpharmacy.com Inc. v. Yates, the B.C. Supreme Court upheld an application by the defendants to stay legal proceedings in favour of arbitration, despite the fact that the defendants themselves were not signatories to the arbitration agreement. The decision demonstrates the generous approach taken by the courts to granting a stay in favour of arbitration, and confirms that although a…