Category Archives: Arbitration

Discuss: Stay and Appeal Issues in the Alberta Arbitration Act

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Report commented on: Arbitration Act: Stay and Appeal Issues (Report for Discussion 24)

The Alberta Law Reform Institute (ALRI) has just published Arbitration Act: Stay and Appeal Issues (Report for Discussion 24). In this 44-page Report, ALRI explores procedural issues arising out of the Arbitration Act, RSA 2000, c A-43, concerning partial stays of court proceedings under section 7(5) and appeals to the Queen’s Bench under section 44, and very important questions about the role of arbitral appeals more generally. The Report explains the issues, describes their context and asks for input about how best to fix the difficulties identified.

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Do Global Law Firm Mergers Expand an Arbitrator’s Continuing Obligation to Disclose Conflicts of Interest Under the ICSID Arbitration Rules?

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Decision considered: ConocoPhillips Company et al. v The Bolivarian Republic of Venezuela

Two members of an ICSID arbitral tribunal – the Honourable Judge Kenneth J. Keith and Professor Georges Abi-Saab – have dismissed Venezuela’s challenge to the tribunal’s third member, Mr. L. Yves Fortier.

Venezuela filed a formal proposal to disqualify Mr. Fortier on October 5, 2011, one day after Mr. Fortier made a disclosure to the ICSID Secretary-General regarding the upcoming merger of Norton Rose OR LLP (“Norton Rose”), the firm in which he was a partner, and Macleod Dixon LLP (“Macleod Dixon”). Macleod Dixon was a Canadian-based law firm with international offices in, among other regions, South America. Venezuela’s proposal to disqualify Mr. Fortier arose out of concerns related to Macleod Dixon’s Caracas office. Specifically, Venezuela had concerns about “the extent and depth” of that office’s representation of ConocoPhillips (the Claimant in this arbitration) and other clients in matters adverse to Venezuela, its state-owned petroleum company and/or affiliates.

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Is this the end of an “endless repetition of failed litigation” – at least in Alberta?

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Case considered: Karaha Bodas Company, L.L.C. v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 2011 ABCA 291

The Court of Appeal waxes eloquent in this short judgment that considers the latest episode in what the Court characterized (at para 8 ) as an “endless repetition of failed litigation.” The Court of Appeal – composed of Mr. Justice Jean Côté, Madam Justice Elizabeth McFadyen and Mr. Justice Clifton O’Brien – heard an appeal from an April 1, 2010 order by Mr. Justice T.D. Clackson (Karaha Bodas Company, L.L.C. v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 2010 ABQB 172), an order that I commented on in “Arbitration for the Quick and Final Resolution of Disputes? Hardly.” The subject matter of that order is a procedural morass, the details of which are rather mind-numbing. What is interesting about the latest decision is the Court of Appeal’s characterization of Pertamina’s continuing world-wide litigation as “vexatious”. Will that characterization finally bring a halt to these proceedings, at least in this province?
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Leave to Appeal an Arbitration Award: Is There a Public Interest Requirement?

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Case considered: Milner Power Inc. v. Coal Valley Resources Inc., 2011 ABQB 118

This brief judgment raises an interesting question. Is it possible to interpret section 44(2) of Alberta’s Arbitration Act, R.S.A. 2000, c. A-43 to require that leave to appeal be in the public interest, as so many Alberta decisions have done? At the end of his judgment, Mr. Justice M.A. (Mel) Binder suggested to counsel that they raise this question with the appropriate government department or legislative counsel. This is not a new issue but it has been surprisingly seldom raised during the twenty years that the provision has been in effect considering that the test for leave to appeal in section 44(2) speaks only of the “the importance to the parties” and “the rights of the parties.”

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When is Delay “Undue” under Section 7(2)(d) of the Arbitration Act?

PDF version: When is Delay “Undue” under Section 7(2)(d) of the Arbitration Act 

Case considered: Eiffel Developments Ltd. v. Paskuski, 2010 ABQB 619

In June of 2007, Eiffel Developments Ltd. sued Geoffrey and Lisa Paskuski for $46,667, alleging non-payment under a contract for the construction of the Paskuskis’ home. Three years later, Eiffel asked Jodi L. Mason, Master in Chambers, to deem service of Eiffel’s Statement of Claim on the Paskuskis to be good and sufficient. The Paskuskis made three arguments opposing this simple application: (1) that there was no evidence of service of the Statement of Claim and an absence of service cannot be cured; (2) that even if an absence of service could be cured, there was no evidence to support the relief sought by Eiffel, and (3) that Eiffels’ claim should be stayed on the basis of an arbitration clause in the home construction agreement. The Paskuskis lost all three arguments. This comment will focus on the third argument seeking enforcement of an arbitration agreement.

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