The Ontario Superior Court of Justice recently issued another decision in the ongoing saga on the enforcement of arbitral awards against the Kyrgyz Republic by various arbitral creditors. Consistent with the United Nations Commission on International Trade Law Model Law and previous case law, the decision confirms that only the most egregious circumstances will warrant a refusal to recognise an arbitral award for public policy reasons.
The Ontario Court of Appeal recently confirmed a decision of the Ontario Superior Court of Justice staying an action commenced by Novatrax International Inc against a German company with which it had contracted, on the basis of a commitment to arbitrate in the contract. The court characterised the arbitration agreement as a 'forum selection clause' and applied a conflicts of law analysis based on forum non conveniens.
In a recent decision dismissing a petition to set aside an arbitral award, the Ontario Superior Court of Justice affirmed Canada's commitment to the arbitral process as a final, binding method of dispute resolution, and reiterated the limited ability of arbitral debtors to set aside an award under Section 34(2) of the Commercial Arbitration Code.
The Ontario Superior Court of Justice recently ruled on the ability of arbitral creditors to seize assets of state-owned entities. The decision follows a line of decisions from Ontario courts regarding attempts to seize shares in an Ontario company held by a Kyrgyz-owned entity and serves as a reminder of some of the difficulties arbitral creditors may face when collecting amounts owed under foreign arbitral awards.
The Ontario Court of Appeal has recently clarified the scope of an application judge's discretion to set aside an arbitral award pursuant to Article 34(2) of the United Nations Commission on International Trade Law Model Law. The decision in Popack v Lipsyzc affirms the decision of the lower court to uphold an arbitral award in the unique circumstances of that case despite an ex parte meeting that amounted to a breach of the arbitration agreement.
Mareva injunctions can be a powerful tool to preserve assets pending the enforcement or rendering of an arbitral award. The international arbitration proceeding of Stans Energy Corp v Kyrgyz Republic provides both a useful example of the effectiveness of Mareva injunctions and a cautionary reminder of the strict obligations on counsel to disclose all material facts related to a Mareva application.
A recent Ontario Superior Court of Justice decision affirms the Canadian courts' propensity to uphold international arbitral awards under the United Nations Commission on International Trade Law Model Law. It sends a strong reminder to courts to carefully weigh potential prejudices before setting aside an arbitral award, regardless of the grounds advanced for doing so.