In United Mexican States v Burr, 2021 ONCA 64 (“Mexico v Burr”), the Ontario Court of Appeal (the "Court") addressed a nuanced distinction for parties seeking to challenge an arbitral tribunal's award on jurisdiction as “a preliminary question” under Article 16(3) of the UNCITRAL Model Law on International Commercial Arbitration (the "Model Law") as opposed to “in an award on the merits” under Article 34 of the Model Law.

The Ontario Superior Court of Justice recently provided clarity in Bakaris v. Southern Sky, 2020 ONSC 7306, as to how parties ought to proceed when their agreements require that disputes both be arbitrated and be brought before the courts.

Overview

Sir Ross Cranston commences his reasons in the case of Doglemore Trade Ltd v. Caledor Consulting Ltd [2020] EWHC 3342 (Comm), by quoting Sir John Donaldson MR in The Montan: “[M]istakes will occur even in the practices of the best of arbitrators”. While unfortunate, mistakes can occur. In such cases, one can seek relief from the tribunal or the courts. The mistake in Doglemore Trade Ltd v. Caledor Consulting Ltd, although seemingly obvious, required an application to the courts for relief.

The International Chamber of Commerce (“ICC”) has introduced new rules for arbitration (the “2021 Rules”) that will apply to cases filed from January 1, 2021 onward. The 2021 Rules respond to the global pandemic by modernizing procedures and increasing the role of technology.

The previous arbitration rules came into force on March 1, 2017 (the “2017 Rules”) and will continue to apply to cases registered before January 1, 2021.

In Gupta v. Cedar Homes Ltd., 2020 ONSC 6333 (“Gupta”), the Ontario Superior Court of Justice had to decide whether an arbitration clause was unconscionable, in light of the teachings of the Supreme Court of Canada’s recent decision in Uber Technologies Inc. v. Heller, 2020 SCC 16 (“Uber”). An analysis of the Uber decision can be found here.

The Supreme Court of the United Kingdom (the “Court”) recently handed down its decision in Halliburton Company v Chubb Bermuda Insurance Ltd.[1] The appeal followed an initial application to the High Court by Halliburton (and its subsequent appeal), in accordance with the terms of the arbitration agreement between the parties, in which Halliburton challenged the impartiality of the chairman of the arbitral tribunal and sought his removal and replacement on the basis of an appearance of bias.

How is the substantive law in an international arbitration proceeding established before an arbitral panel during an arbitration? By substantive law, we are of course referring to the body of laws that apply to the interpretation of the contract and the underlying activities (for instance, environmental or consumer protection laws).