Category Archives: Arbitration

The Annex VII Tribunal in The “Enrica Lexie” Incident Makes New Provisional Measures Order

By: Nigel Bankes

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Decision commented on: Annex VII Arbitral Tribunal, Order on Prescription of Provisional Measures in the “Enrica Lexie” Incident, Registry of the Permanent Court of Arbitration, 29 April 2016

The “Enrica Lexie” incident has already been the subject of an earlier post here in relation to the provisional measures order made by the International Tribunal for the Law of the Sea (ITLOS) pending the establishment of the Annex VII Tribunal in the matter. The facts of the matter and the unusual nature of ITLOS’s jurisdiction in cases of this sort are canvassed in that earlier post. The characterization of the dispute as summarized by the Annex Tribunal VII is as follows (at para 5):

According to Italy, the Parties’ dispute arises from an incident approximately 20.5 nautical miles off the coast of India involving the “MV Enrica Lexie”, an oil tanker flying the Italian flag, and India’s subsequent exercise of criminal jurisdiction over the vessel and two Italian marines from the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, in respect of that incident. According to India, the “incident” in question concerns the killing of two Indian fishermen, on board an Indian vessel named the “St. Antony”, and the subsequent exercise of jurisdiction by India. It is alleged that the fishermen were killed by the two Italian marines stationed on the “Enrica Lexie”. Continue reading →

The Relevance of Sattva for Appeals from Arbitration Awards in Alberta

By: Jonnette Watson Hamilton

PDF version: The Relevance of Sattva for Appeals from Arbitration Awards in Alberta

Case commented on: Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 (CanLII)

The Supreme Court’s decision in Sattva Capital Corp v Creston Moly Corp has quite rightly received a great deal of attention. It has attracted notice in contract law circles for changing the law by holding that contractual interpretation involves questions of mixed fact and law, and not questions of law (see e.g. “Contract interpretation is no longer a question of law”, “A blockbuster decision in contractual interpretation” and “SCC issues ‘big change’ to contract law – Sattva gives last word to trial judges, arbitrators”). And, because the precedent-setting decision arose from an arbitration hearing in British Columbia, it has also attracted commentary more focused on the arbitral aspects (see e.g. “Finally, the Supreme Court of Canada puts some finality into Arbitrations” and “Supreme Court of Canada Limits the Right to Appeal Commercial Arbitral Decisions on Issues of Contractual Interpretation”). Because the British Columbia arbitration legislation that facilitated and regulated the arbitration in Sattva is unlike that in the rest of common law Canada, I will focus on the arbitration aspects of the decision and then explore the difference the Sattva decision may make in arbitrations in Alberta (and in Ontario, Saskatchewan, New Brunswick, Prince Edward Island, Manitoba and Nova Scotia, all of which also adopted the Uniform Law Conference of Canada’s Uniform Arbitration Act (1990)).

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Arbitrators Have the Last Word on Procedural or Interlocutory Matters

By Jonnette Watson Hamilton

 PDF Version: Arbitrators Have the Last Word on Procedural or Interlocutory Matters

Case commented on: Suncor Energy Inc v Alberta, 2013 ABQB 728

Suncor Energy Inc v Alberta is a decision by Chief Justice Neil Wittmann on an appeal by the provincial Crown from an arbitration tribunal’s order on a procedural point. Suncor Energy Inc. began arbitration proceedings in January 2011 to resolve a dispute over royalties to be paid on the production of mined bitumen to the province. The issue before the Chief Justice was a narrow one, namely, whether the refusal of the arbitrators to refer a question of law to the court, concerning the application of section 50 of the Mines and Minerals Act, RSA 2000, c M-17, to the production of records that the Crown received from oil sands producers other than Suncor, was a decision that could be appealed. The Chief Justice decided that the court did not have jurisdiction to hear the Crown’s appeal under either section 17(9) or section 44 of Alberta’s domestic arbitration statute, the Arbitration Act, RSA 2000, c A-3. In doing so he confirmed that the competence-competence principle, which allows an arbitral tribunal to determine its own jurisdiction, underlies sections 17 and 44. While not as explicit on this point as was the recent decision of the Ontario Court of Appeal in Ontario Medical Association v Willis Canada Inc, 2013 ONCA 745 at paras 19-37, the Chief Justice’s decision gives effect to the statutory grant of authority to the arbitration tribunal to have the last word on procedural or interlocutory matters that arise during the course of arbitration.

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Enforcing Alberta’s Restrictions on Consumer Arbitration

PDF version: Enforcing Alberta’s Restrictions on Consumer Arbitration

Case commented on: Young v National Money Mart Company, 2013 ABCA 264 (CanLII).

This decision by the Alberta Court of Appeal is a welcome addition to the body of consumer arbitration case law. It is the first Court of Appeal decision to give effect to section 16 of the Fair Trading Act, RSA 2000, c F-2, and only the second reported decision considering that provision despite the fact it has been around since 1998. The decision also offers a glimpse into the basis on which Service Alberta decides to approve or disapprove of consumer arbitration agreements under section 16.

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Arbitration, Disability and Human Rights Cases

PDF version: Arbitration, Disability and Human Rights Cases

Case commented on: AUPE v Alberta, 2013 ABCA 212.

This case involves the fairly technical issue of whether, in Alberta, a grievance involving a human rights issue should be resolved by an adjudicator who is entirely independent of the employer, who is a party. In this case, the collective agreement provided for the complaint to be resolved before a Designated Officer who was an employee of one of the parties, although not subject to the collective agreement. The Labour Relations Code, RSA 2000, c L-1 (Labour Code), section 135, provides that every collective agreement must include a dispute resolution mechanism, but does not contain any direct statement requiring that the arbitration mechanism must operate in circumstances absent a reasonable apprehension of bias (as is the case in some other provinces). There had been some prior cases involving section 135, but none of these involved a potential breach of both the collective agreement and the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA).

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