In Haas v. Gunasekaram, 2016 ONCA 744, the Ontario Court of Appeal recently held that claims in tort and fraud, and resulting claims to set aside the agreement between the parties, were within the jurisdiction of the arbitral tribunal under an arbitration agreement. Accordingly, the court action between the parties was stayed. This decision is […]
Continue Reading →Tort And Fraud Claims Fall Within Arbitration Agreement: Ontario Court Of Appeal
Posted by: Construction Law Canada
The Supreme Court Of Canada Proclaims 10 Rules For The Interpretation Of Contracts And The Review Of Arbitration Awards
Posted by: Construction Law Canada
The Supreme Court of Canada’s recent decision in Sattva Capital Corp. v. Creston Moly Corp. is a remarkable document. It is more than a judicial decision. It is literally a textbook or checklist for the interpretation of contracts and the review of arbitration decisions. Background First, the context. Creston agreed to pay Sattva a finder’s […]
Continue Reading →Does Competence-Competence Apply To Domestic Arbitration?
Posted by: Construction Law Canada
Competence-competence is a central principle of international commercial arbitration: the tribunal has the competence to decide its own jurisdiction. This principle is embedded in Article 16 of the UNCITRAL Model Law. For this reason, a court will await the arbitral tribunal’s decision on its own jurisdiction before undertaking a review of that issue, unless the […]
Continue Reading →Does The CCDC Dispute Resolution Clause Require Arbitration?
Posted by: Construction Law Canada
Most building contracts contain dispute resolution clauses which refer to arbitration. A dispute resolution clause can be mandatory – it can require arbitration – or it can be permissive – it can permit arbitration if all parties agree to arbitration when the dispute arises. One would think that the most important thing to make clear […]
Continue Reading →Is An Agreement To Mediate Enforceable?
Posted by: Construction Law Canada
A recurring issue in arbitration and construction law is whether an agreement to mediate is enforceable. That is because an arbitration or building contract may contain a clause imposing an obligation to mediate before arbitrating. If the agreement to mediate is enforceable, that likely has certain consequences. The limitation period is likely not running and […]
Continue Reading →Does The UNCITRAL Model Law Apply To A Claim Under The Consumer Protection Act?
Posted by: Construction Law Canada
The Queen’s Bench Court for Saskatchewan recently applied the Saskatchewan International Commercial Arbitration Act (SICAA) and the UNCITRAL Model law annexed to that Act and stayed an action based on the Saskatchewan Consumer Protection Act and a contract which was apparently between two Canadian entities. The decision in Zwack v. Pocha is important for two […]
Continue Reading →Six Points To Consider Before Commencing An Arbitration
Posted by: Construction Law Canada
On October 10, 2012, I gave a speech at an Advocates’ Society program. The program was entitled Arbitration is the New Black. My presentation focused on seven issues which should be addressed when a party is contemplating the commencement of an arbitration. Starting the arbitration seems like the easiest thing in the world. After all, […]
Continue Reading →What Are The Limits Of Competence-Competence For Arbitral Tribunals?
Posted by: Construction Law Canada
Competence-competence is now a foundational principle of the modern law of arbitration. According to that principle, an arbitral tribunal is competent to decide its own competence. In other words, the tribunal has jurisdiction to decide its own jurisdiction. That principle demands, in turn, that the arbitral tribunal, and not the court, should in the first […]
Continue Reading →Can An Arbitration Claim Be Dismissed For Delay?
Posted by: Construction Law Canada
Does an arbitral tribunal have authority to dismiss an arbitration claim for want of prosecution? Some arbitration statutes expressly state that a tribunal has the power to do so. Absent such an express power, the British Columbia Court of Appeal has held that the tribunal has no inherent authority to do so: Premium Brands Operating […]
Continue Reading →