In 2022, Canadian courts revisited some old issues, like the timeframe for recognizing foreign arbitral awards, but also faced new dilemmas, such as the impact of sanctions on recognition and enforcement. Fostering Canada’s pro-arbitration standing, courts were generally adamant about referring commercial parties to arbitration, although a few exceptions that arose in insolvency contexts are…

The past year has seen several victories for Canada on the ISDS front, a conclusion of a decade-long NAFTA arbitration, and much more. If 2022 is any indication, readers will have many more developments to look forward to during 2023.   Canada comes out of 2022 mostly on top in ISDS Of the cases surveyed,…

On November 10, 2022, the Supreme Court of Canada issued its decision in Peace River v Petrowest. Insolvency and arbitration practitioners alike eagerly anticipated the decision, hoping it would provide clarity on how to resolve challenges that arise when these two specialist areas of practice come together in one case.  In this post, we review…

Over the last few years, arbitrator independence and impartiality have been under heightened scrutiny by courts and tribunals. This is not unexpected. The importance of the rule against bias is best explained by Lord Denning’s dictum in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 where he held that “[j]ustice must be…

On the third and final day of CanArb Week 2022, the ICC Canada Arbitration Committee held its annual conference titled The New World. The conference sessions were bookended by opening and closing remarks by Professor Janet Walker (Chair, ICC Canada, Atkin Chambers, Full Professor, Osgoode Hall Law School) and Myriam Seers (Vice-Chair, ICC Canada, Partner,…

The third edition of CanArb Week took place in Montréal from October 19 to 21, 2022. Speakers from all walks of arbitration life (academics, arbitrators, counsel, experts, leaders of arbitral institutions, and third party funders), as well as justices of the Supreme Court of Canada, gathered in the “Paris of North America”, to the delight of…

Not so long ago, as a lawyer you started your career at the same firm from which you would later retire. Today, the opposite is true. Ambitious young lawyers and sometimes even entire practice groups move to new firms. Counsel switch between in-house and law firm positions, between public and private employers, and occasionally between…

This question of first impression under the United States-Mexico-Canada Agreement (USMCA) has been brought to the fore with the spring 2022 publication of the Request for Arbitration (“Request”) submitted by TC Energy Corporation and TransCanada PipeLines Limited against United States (dated November 22, 2021) and the Notice of Intent (“Notice”) submitted by Alberta Petroleum Marketing…

Canada’s west coast has long welcomed arbitration as a means of dispute resolution and provided a venue for arbitrations of all kinds. The Vancouver International Arbitration Centre (VanIAC) – established in 1986 under the name British Columbia International Commercial Arbitration Centre (BCICAC) – has recently made further strides in providing parties with workable and efficient…

Aircraft seizures tend to come up at the enforcement stage, oftentimes in relation to investment arbitration awards (see, e.g., proceedings against Tanzania or Equatorial Guinea). In Specter Aviation v. Laprade, however, the seizure of the Beechcraft Super King Air 300 (the “Aircraft”) is what triggered proceedings before the courts of the Canadian province of Québec,…

A dual webinar series “Do You Know What Your Neighbour is Doing?” (available at links here and here) recently hosted by Dentons provided an overview of how to navigate international arbitration in the United States (“US”) and Canada. The first webinar was moderated by Rachel Howie, FCIArb (Calgary). It featured three panelists who discussed international…

Environmental concerns now play an increasing role in investment disputes. In this regard, this post analyses the interpretation of an environmental carve-out in an investment treaty in the decision on jurisdiction and liability in Eco Oro Minerals Corp. (“Eco Oro”) v. Colombia.   Background and Award This dispute arose from Colombia’s measures adopted in connection…

Established in 1986, the Vancouver International Arbitration Centre (“VanIAC”, formerly known as the British Columbia International Commercial Arbitration Centre) is an organization committed to offering additional dispute resolution paths, providing services to individuals and businesses who wish to resolve conflicts through mediation and arbitration.  Barry Penner Q.C. serves as VanIAC’s Managing Director. Mr. Penner, thank…

Canadian courts are frequently asked to rule upon the effects of arbitration agreements in the context of potential class actions. For example, the Supreme Court of Canada (“SCC”) has upheld arbitration clauses for most, if not all issues, disallowing class action recourse in Dell Computer Corp. v. Union des consommateurs(2007), Rogers Wireless Inc. v. Muroff…

In the legal world, countless hours are spent choosing, weighing and defining words, expressions and phrases, and linguistic precision is instilled as a virtue from the first day of law school. It is therefore rather concerning when courts use both inaccurate and inapt language to address a specific issue, such as when Canadian courts consider…

British Columbia (“BC”) was the first Canadian jurisdiction to introduce modern arbitration legislation based on international standards in the UNCITRAL Model Law in 1986. Despite being an early leader in arbitration in Canada, BC did not update its domestic legislation for over two decades, which caused some increasing discrepancies between BC’s arbitration legislation, the UNCITRAL…

As part of Canadian Arbitration Week, the 2021 ICC Canada Conference, titled Leaning into the Future, was designed to facilitate critical thinking and debate on several important topics in international arbitration. The focus of the conference was decidedly post-pandemic, exploring fault lines and cleavages in the system of international arbitration as we know it today,…

Just about everyone in the legal profession has made a small mathematical error in front of others and quipped, “well, that’s why I went to law school”. Clients hire lawyers for our legal reasoning, not for our abilities in arithmetic. For this reason, supplementing skilled legal analysis with input from industry and quantum experts is…

Canadian Arbitration Week ran online from September 20 – 24, 2021 under the theme of adaptation and acceleration.  A timely focus as the pandemic continues to accelerate sweeping changes in the legal world. The 2021 YCAP Fall Symposium titled “New World, New Rules” took place on September 23 and addressed the theme in a session…

The COVID-19 pandemic has normalized virtual hearings. According to the Ontario Superior Court, this has made the doctrine of forum non conveniens obsolete. In Kore Meals LLC v Freshii Development LLC, 2021 ONSC 2896, in the context of an application to stay Canadian court proceedings in favour of arbitration in the U.S., the Ontario Superior Court…

Much ink has been spilled on the 2014 Yukos arbitral awards, and rightfully so. They are notorious for collectively breaking the previous record for the largest arbitral award in history. Their magnitude (these were, in the tribunal’s words, “mammoth arbitrations”) also commands our attention, as do the issues at stake and the multiple companion arbitrations…

The story of counsel ethics in international arbitration is very much like Cinderella’s fairytale. Once the clock struck midnight, all that remained was her glass slipper. This left the prince to search the kingdom for a maiden with the perfect fit for a “happily ever after”. Counsel ethics in international arbitration similarly involve an ongoing…

The approach historically taken by Canadian courts to playing the role of guardian with respect to domestic commercial arbitration has sometimes been both confused and confusing, a situation only cofounded by recent Supreme Court of Canada (“Supreme Court”) jurisprudence. With the release of Sattva in 2014 and Teal Cedar in 2017 , the Supreme Court…

On May 13, 2021, after several years of public consultations, Global Affairs Canada released a new Foreign Investment Promotion and Protection Agreement Model (“2021 Model”). The prior iteration of the FIPA Model was broadly understood to have been influenced by Canada’s experience under the NAFTA regime. Similarly, the 2021 Model benefits from Canada’s continued trade…