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The Pendulum Swings: Parties to UNCITRAL Arbitrations Can Tender New Evidence as of Right on Jurisdictional Challenges

Tue, 2021-07-20 12:07

The Russian Federation v Luxtona Limited, 2021 ONSC 4604 (“Luxtona 2021”) is the latest installment in a series of decisions addressing the admissibility of new or “fresh” evidence on appeals from an arbitral tribunal’s jurisdiction decision arising in the context of the UNCITRAL Model Law on International Commercial Arbitration (the “ModelLaw”).

When is an arbitration hearing considered a “hearing” under Ontario arbitration legislation?

Tue, 2021-06-22 14:49

Arbitration proceedings are typically intended to provide the parties with a quicker, more cost-effective means of resolving disputes. But what happens when that process is streamlined further? Can an arbitral award be set aside if one of the parties was not given an opportunity to fully present its case?

In Optiva Inc. v. Tbaytel[1] (Optiva), the Ontario Superior Court of Justice (the “Court”) recently had the opportunity to consider whether a motion for summary judgment within an arbitration constitutes a “hearing” in the context of s. 26(1) of the Ontario Arbitration Act[2](the Act).

The Court found that summary judgment in this context can satisfy the requirements for a hearing under the Act. Given the similarity in the procedural requirements under the Act and the Ontario International Commercial Arbitration Act[3] (the ICAA”), this decision can likely shed light on what constitutes a hearing under both the Act and the ICAA.

Ontario Court Signals that Security for Costs Should Not Frustrate the Enforcement of Foreign Arbitral Awards

Tue, 2021-06-01 10:33

A recent appellate decision in China Yantai Friction Co. Ltd. v. Novalex Inc., 2021 ONSC 3571, strongly suggests the answer is -- no. In granting leave to appeal, the Court noted that the principle of comity, combined with Canada’s international commitments, likely means that when recognizing arbitral awards, security for costs should only be awarded in limited circumstances.

Canada introduces modernized model FIPA with significant CETA influence

Wed, 2021-05-26 10:56

On May 13, 2021, Canada announced the introduction of a modernized Foreign Investment Promotion and Protection Agreement Model (“2021 Model FIPA”). According to Global Affairs Canada (“GAC”), this model will “help provide a stable, rules-based investment environment for Canadian businesses investing abroad and for foreign businesses investing in Canada”, while balancing “the interests of all Canadians...so that the benefits of Canada’s investment agreements are shared broadly across society”.

Stay Proceedings in the “Age of Zoom” – Is this the End of Forum Non Conveniens Arguments?

Wed, 2021-05-12 16:23

Why this case matters

“In the age of Zoom, is any forum more non conveniens than another?”

This was the opening line in the decision in Kore Meals LLC v. Freshii Development LLC, in which the Ontario Superior Court of Justice was tasked with deciding whether to stay a Court proceeding brought in Ontario in favour of an arbitration seated in Chicago, Illinois. 

Privy Council Overturns Arbitral Award for “serious irregularity”

Tue, 2021-04-27 15:50

In RAV Bahamas Ltd and another v. Therapy Beach Club Incorporated[1], a decision of the Court of Appeal of the Bahamas to uphold an arbitral award was overturned by the Judicial Committee of the Privy Council (“the Privy Council”) on the basis of “serious irregularity”.

The Path Forward – The IBA Updates its Rules on the Taking of Evidence in International Arbitration

Wed, 2021-04-21 16:06

On February 15, 2021, the International Bar Association (“IBA”) released its latest update on the “IBA Rules on the Taking of Evidence in International Arbitration” (the “2020Rules”).[1] This update follows the hard work of the 2020 Review Task Force, which, as past review subcommittees have done[2], strived to clarify the existing rules and alter any rules warranting reflection, in consideration of the shifting procedural ground and public comments of practitioners and counsel alike.