CANADA Trends and Developments Contributed by: Carey Veinotte, Bojm Funt & Gibbons
Assam came to Canada to register the arbitral judg - ment as a judgment of the British Columbia court according to Section 35 of the International Commer - cial Arbitration Act, RSBC 1996 Chapter 233. Canoro, realising its peril now that Assam had come to Canada, raised a buffet of defences before the British Columbia court, including: • procedural irregularities in India; • that the “deck was stacked against it” in India; • repeated complaints about the capacity of one of the arbitrators; • arbitral jurisdiction over the dispute; and • in summary, that the whole matter should be reliti- gated in Canada on the trial list. Beginning at paragraph 42, the British Columbia court distilled the relevant principles as follows: • broad deference and respect is to be accorded to international arbitration tribunals; • the court is generally not empowered to scrutinise the arbitrator’s findings on matters of jurisdiction but rather it should accept the arbitrator’s decision on its face and ought not go behind it; • it is not the role of the court on this type of applica - tion to consider the merits of a substantive issue that was the arbitrators’ to decide; • nor is it proper for the respondent to try and re- litigate these issues in Canada – if the respondent wanted to challenge the jurisdiction or composition of the arbitral tribunal or any of its decisions on the
merits, the respondent ought to have taken steps to do so in another forum; • the fact that the respondent’s initial objections to the jurisdiction, composition or procedures of the arbitral tribunal were unsuccessful does not give rise to a basis for refusing recognition or enforce - ment of the arbitral award in this jurisdiction; and • the “contrary to public policy” ground for refusing recognition or enforcement is to be narrowly con - strued and requires fundamental breaches of jus - tice and fairness and conduct of a sort that could not be tolerated or condoned by British Columbia courts. The court refused all of Canoro’s arguments against registering the Indian arbitral award as a Canadian award, stating as follows. “ [53] Canoro took a high risk strategic decision when it opted to abandon both its petition to the Supreme Court of India and its further participation in the arbi - tration. Having done so, it now seeks to re-litigate before this Court the same objections raised in India, labeling them as ‘triable issues’ of the sort that warrant rejection of Assam’s petition in favor of further discov - ery and ultimately a full trial here in British Columbia.” “ [54] I find, however, that in accordance with the legal principles articulated above, Canoro is not entitled to re-litigate its case in British Columbia. It could have and should have pursued the procedural and legal options available to it in India. It did not do so and it must live with the consequences.”
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