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First Appeal Under the New B.C. Arbitration Act: Arbitrator’s Material Misapprehension of Evidence Is an Appealable Legal Error

Wed, 2022-09-21 10:28

In Escape 101 Ventures Inc. v. March of Dimes Canada, 2022 BCCA 294 (“Escape”), the first appeal under British Columbia’s new Arbitration Act, S.B.C. 2020, c. 2 (the “Act”), the B.C. Court of Appeal (the “BCCA”) held that an arbitrator’s material misapprehension of evidence constitutes an extricable legal error subject to appellate review, and that such an error need not be apparent on the face of the arbitrator’s award. The decision provides useful guidance on the permitted scope of an appeal of a domestic commercial arbitration award under the Act.[1]

The threshold for setting aside an arbitral decision remains high

Wed, 2022-09-14 09:59

The recent decision of NDK Ltd v HUO Holding Ltd [2022] EWHC 1682 (Comm) is evidence of English courts’ continued support for arbitration and the significant hurdler one faces to appeal arbitral awards. In this decision, s. 67 challenges of the Arbitration Act 1996 (the “Act”) were rejected by the Commercial Court (the “Court”).

Taking the Right Steps: the importance of meeting contractual pre-conditions in dispute resolution agreements – H. R. Doornekamp Construction Ltd. v. Canada (Attorney General) (Department of Public Works and Government Services), 2022 ONSC 2247

Thu, 2022-09-08 09:54

In H. R. Doornekamp Construction Ltd. v. Canada (Attorney General) (Department of Public Works and Government Services) (“Doornekamp”), the Ontario Superior Court held that parties are required to follow conditions precedent set out in the dispute resolution framework of their contracts. The decision demonstrates the importance of complying with stepped or staged dispute resolution clauses.

Artificial Intelligence and Arbitration

Wed, 2022-08-31 12:09

Artificial intelligence (“AI”) systems assist humans in many facets of society, including in the legal industry. The inherent flexibility of arbitration allows arbitration counsel and arbitrators to be among the vanguard of the legal profession in adopting artificial intelligence and other technologies.

Manifest Unfairness – the Alberta Court of Appeal Clarifies the Test

Thu, 2022-08-18 08:58

In ENMAX Energy Corporation v TransAlta Generation Partnership, 2022 ABCA 206, the Alberta Court of Appeal (the “Court”) provided insight into what constitutes "manifest unfairness” within an arbitration procedure sufficient to deprive a party of presenting a case and warranting set aside of the arbitration award pursuant to section 45(1)(f) of the Arbitration Act, RSA 2000, c A-43 (the “Act”).

Pokémon Go Catches a Win in Enforcing Arbitration Clause

Wed, 2022-08-10 13:30

In Petty v Niantic Inc., 2022 BCSC 1077, the British Columbia Supreme Court addressed the enforceability of arbitration clauses in consumer transactions, providing guidance on drafting measures to ensure an arbitration agreement survives challenges on grounds of unconscionability and public policy.

Same Arbitrator, Multiple Arbitrations: Guidance from Ontario

Thu, 2022-07-21 17:43

You have a dispute with a counterparty. You appoint an arbitrator to decide it and the arbitrator does. You have another dispute with the same counterparty and propose to re-appoint the same arbitrator. The counterparty objects. What now?

Esfahani v Samimi, 2022 ABCA 178: Alberta Court of Appeal Reinforces Narrow Grounds for Appealing an Arbitration Award

Tue, 2022-07-05 17:34

Arbitration is a useful tool for parties seeking to resolve disputes while potentially avoiding lengthy delays and significant costs. However, parties who engage in the arbitration process should be mindful of the narrow grounds on which an arbitral award can be appealed. Canadian jurisdictions each have domestic and international arbitration statutes which outline these narrow grounds, and such statutes are often incorporated either directly or by reference into standard form arbitral agreements.

Not so Fast – English Commercial Court Finds that LCIA Award does not bind Third Parties

Tue, 2022-06-28 15:40

In PJSC National Bank Trust and another v Boris Mints and others [2022] EWHC 871 (Comm), Foxton J of the English Commercial Court was tasked with deciding whether to allow the Claimant banks to amend their pleadings to include an allegation that findings from an award of the London Court of International Arbitration (the “LCIA”), involving parties allegedly under the control of the Claimants in the arbitration, bound the First, Second and Third Defendants in the Court proceedings (collectively the “Defendants”). Foxton J found that the arbitral award did not bind third parties, though he did not shut the door entirely for a different conclusion to be reached in the future on a different set of facts.

Arbitration versus the “Single Proceeding Model” in Insolvency Proceedings – Which prevails?

Thu, 2022-06-09 16:53

In Royal Bank of Canada v Mundo Media Ltd[1], the Ontario Superior Court of Justice found the presence of an arbitration clause between two parties did not preclude a court-appointed Receiver in the insolvency proceedings from asserting claims by the debtor against third parties not involved in the insolvency proceedings.