Commercial Arbitration: Guidance From Canadian, US, UK And Australian Appellate Courts

Back in March, I wrote in this space that the Supreme Court of Canada had decided to hear a commercial arbitration case from British Columbia.

We're now halfway through 2013 and there have been some intriguing appellate court decisions on commercial arbitration in Canada and in the highest courts in the U.S., U.K. and Australia - common law jurisdictions where Canadian judges commonly turn for guidance and lawyers look for ideas and inspiration.

Foreign cases are obviously not binding on Canadian courts. Sometimes they're not even persuasive authorities, because the national circumstances are different - applicable legislation varies, the constitutional and historical context is not sufficiently comparable, and so on.

In some respects, international arbitration law is exceptional, because conventions (the UNCITRAL Model Law and the New York Convention) are prominent sources of law in so many countries worldwide. But common points of principle do come up all over the developed world in both domestic and international arbitration law. When will a court intervene because a tribunal made a legal error, or reached an unjust result? What is the scope of a tribunal's powers? If arbitration is a consensual process to resolve disputes, when is a party not bound - for example, what if a party wants to commence a class action?

For issues like these, we keep an eye out for decisions from high courts around the world.

Here's a quick rundown of some noteworthy cases from Canada and three English-speaking foreign sources up to June 30th. If you're keeping score at home, or are a lawyer with mild insomnia, the case names and citations are listed at the end. They're all available online.

Canada

In February, the Federal Court of Appeal held that a statutory damages claim under Canada's antitrust statute, the Competition Act, is capable of resolution by arbitration. No application for leave to appeal to the Supreme Court was filed.

Another commercial arbitration case may be headed to Ottawa, however, after a March decision by the Newfoundland and Labrador Court of Appeal. The arbitration concerned the value of power generating assets at the end of a 47-year lease to the City of St. John's. The tribunal majority valued all of the undertaking as a going concern, including water and land rights held by Newfoundland Power. The third tribunal member held that only the physical assets should be valued. A judge declined to interfere, but the Court of Appeal held...