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).

In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, Soho Grand Condominiums Inc. and Soinco Limited, 2020 ONCA 612 (“TSCC No. 1628”), the Court of Appeal for Ontario confirmed that s. 7(6) of the Arbitration Act, 1991 does not bar an appeal where a judge refuses to grant a stay of a court proceeding under s. 7(5) where there is an arbitration agreement between the parties.

Which system of national law governs the validity and scope of an arbitration clause when the law applicable to the contract containing it differs from the law of the seat of the arbitration? The UK Supreme Court provided a common sense answer to this narrow yet important issue in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb, [2020] UKSC 38.[1] Briefly, the main principles of law established in Chubb are:

International arbitration continues to grow in popularity as an alternative form of dispute resolution. Parties routinely cite cost-savings, efficiency, autonomy, and expertise as the advantages of arbitration over civil proceedings in foreign jurisdictions. It is not enough to settle on arbitration as the method of dispute resolution, however. Parties must also determine the arbitral “seat”.