scholarly journals Uniformity and Diversity in the Enforcement of Arbitration Clauses in Canada

2020 ◽  
pp. 111-121
Author(s):  
Geneviève Saumier
Keyword(s):  
New York ◽  
Supreme Court ◽  
Access To Justice ◽  
Supreme Court Of Canada ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Consumer Contracts ◽  
Local Courts ◽  
Model Law ◽  
New York Convention

Arbitration is well established in Canada. All jurisdictions have implemented the 1958 New York Convention, the UNCITRAL Model Law on Arbitration and equivalent legislation for domestic arbitration. This generally supportive legal landscape for arbitration is often at odds with access to justice for consumers. As a result, several jurisdictions in Canada have adopted legislation to guarantee consumers’ access to local courts, including through class actions, notwithstanding the inclusion of arbitration clauses in their contracts. The constitutional division of powers in Canada entitles each province to adopt its own policy, leading to diversity across the country with regard to the enforceability of arbitration clauses in consumer contracts. In this paper, the author examines the tension between general support for arbitration and differentiated treatment of consumer arbitration in Canada. To that end, the author examines relevant legislation in several provinces (including Quebec and Ontario) as well as recent jurisprudence from the Supreme Court of Canada (Dell Computer (2007), Telus (2011) and Wellman (2019)). The 2020 decision from the Supreme Court of Canada in Uber may signal a new openness toward extending protection to other vulnerable contracting parties such as employees.

Foreign Arbitral Awards and Foreign Judgments Based upon Such Awards

2018 ◽  
pp. 126-143
Author(s):  
V.C. Govindaraj
Keyword(s):  
New York ◽  
Supreme Court ◽  
Domestic Court ◽  
Applicable Law ◽  
Arbitral Award ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
New York Convention

The New York Convention on foreign arbitration, by Article V (1) (e) lays down a procedural norm that an arbitral award, duly rendered, attains finality if, and only if, a domestic court endorses it. This procedural norm was endorsed by the Supreme Court of India in two leading cases. The ratio that the Supreme Court employed in the above-mentioned cases is in accordance with Section 17 of the Indian Arbitration Act, 1940. Such an endorsement by a local court of the forum that was required under Article V (1) (e) of the New York Convention was done away with by the Arbitration and Conciliation Act, 1996 under Section 35. The forum for the conduct of arbitration in the country of the applicable law also is not indispensable; and it is for the court exercising jurisdiction to determine, on the basis of balance of convenience, the place for the conduct of arbitration, taking into consideration the local status of the parties, such as that one of the parties cannot afford to go to the country of the applicable law, coupled with the availability of evidence, oral and documentary, at the place where the court is exercising jurisdiction.

Public Interest Standing, Access to Justice, and Democracy under the Charter: Canada (AG) v Downtown Eastside Sex Workers United Against Violence

2013 ◽  
Vol 22 (2) ◽  
pp. 21
Author(s):  
Dana Phillips
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Sex Workers ◽  
Access To Justice ◽  
Supreme Court Of Canada ◽  
Downtown Eastside ◽  
The Supreme Court

In 2012 the Supreme Court of Canada issued itsdecision in Canada (AG) v Downtown EastsideSex Workers United Against Violence (SWUAV).1Th e case centered on whether or not thoseinvolved in protecting vulnerable sex workershave standing to challenge the criminalizationof prostitution-related activities on their behalf.SWUAV represents a signifi cant break with previousjurisprudence on standing: it saw the Courttransform its vision of public interest standing,viewing it for the fi rst time as an access to justiceissue.

scholarly journals U.S. Supreme Court Holds that the New York Convention Does Not Displace Domestic Doctrines Permitting Nonsignatories to Enforce Arbitration Agreements

2020 ◽  
Vol 114 (4) ◽  
pp. 757-761
Keyword(s):  
New York ◽  
Supreme Court ◽  
Executive Branch ◽  
The Supreme Court ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
Domestic Law

On June 1, 2020, the Supreme Court unanimously held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or Convention) does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories. The Court interpreted the text of the Convention as being silent on the issue of enforcement by nonsignatories and thus leaving this issue to domestic law. The Court noted that some postratification practice (including the recommendation of a UN commission) and the views of the executive branch were consistent with its conclusion, but it did not determine how much weight should be accorded to these sources.

Intergovernmental Relations‘ Third Wheel: The Role of the Supreme Court in an Era of Collaborative Federalism

Federalism-E ◽  
2009 ◽  
Vol 10 (1) ◽  
pp. 1-15
Author(s):  
Allison O‘Beirne
Keyword(s):  
Supreme Court ◽  
Intergovernmental Relations ◽  
Supreme Court Of Canada ◽  
Division Of Powers ◽  
The Supreme Court ◽  
The Way

The Supreme Court of Canada has an absolutely undeniable role in intergovernmental relations. As the country‘s only constitutionally entrenched body charged with the resolution of division-of-powers disputes, its decisions and rulings are always certain to influence the way in which governments interact with each other. Recently, however, the Supreme Court has come to be less highly regarded as a method of resolving the disputes that arise between governments [...]

Binding non-signatories to arbitrate—the United States approach

2021 ◽  
Author(s):  
Andrijana Mišović
Keyword(s):  
New York ◽  
Supreme Court ◽  
Case Law ◽  
The United States ◽  
Arbitration Clause ◽  
Foreign State ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
New York Convention

Abstract Parties’ consent to the arbitration is the basis for tribunal’s authority to decide the case and, as such, is of fundamental importance in any arbitration proceedings. Commercial reality, however, often requires from the so called ‘non-signatories’ of the contract containing an arbitration clause to participate in performance of such contract. Being sensitive to such commercial concerns, the US courts have developed different domestic theories for binding the non-signatories. Recent ruling of the US Supreme Court holds that such domestic theories are also applicable in cases governed by Chapter 2 of the Federal Arbitration Act (incorporating New York Convention). However, the Supreme Court did not resolve the question which law should be applied to the issue of binding the non-signatories. Although US courts might be more inclined to apply federal principles to this issue, this is not the only possible solution based on the current SCOTUS case-law. The US court could also resort to the choice of law analysis and apply appropriate (foreign) state principles for binding the non-signatories. However, different states clearly have different views of the issue of binding the non-signatories, as this article briefly outlines. Thus, the same factual pattern might lead to completely different results.

scholarly journals Canada's Re-emerging Division of Powers and the Unrealized Force of Reciprocal Interjurisdictional Immunity

2011 ◽  
Vol 20 (1) ◽  
pp. 2011
Author(s):  
Dwight Newman
Keyword(s):  
Supreme Court ◽  
First Century ◽  
Supreme Court Of Canada ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Twenty First Century ◽  
National Programs

In recent decades, up to the middle of the first decade of the twenty-first century, Canadian division-of-powers jurisprudence seems to have been in a period of quiescence, with modern doctrine imposing few constraints on the federal government's implementation of national programs. In this paper, the author argues that adopting provincial interjurisdictional immunity as the Supreme Court of Canada clearly chose to do in the Canadian Western Bank case and other cases, must imply further changes to recent federalism doctrine, potentially including the reaffirmation of spheres of genuine provincial exclusivity or even provincial paramountcy. 

Judicial Discretion as Political Choice: The Supreme Court of Canada's Costs Awarding Power

2018 ◽  
Vol 51 (4) ◽  
pp. 929-947
Author(s):  
Emmanuelle Richez ◽  
Erin Crandall
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Original Data ◽  
Access To Justice ◽  
Judicial Discretion ◽  
Supreme Court Of Canada ◽  
Discretionary Power ◽  
Data Set ◽  
Public Interest Litigation ◽  
The Supreme Court

AbstractThis article analyzes an important discretionary power of the Supreme Court of Canada, the ability to award costs. With the use of an original data set, we explore trends in costs awarding in public interest litigation at the Supreme Court from 1970 to 2012. Our findings suggest that, over time, the Court has tended to favour nongovernment parties over government parties where the former are less likely to pay costs when they lose and more likely to receive costs when they win. In these cases, costs orders were more likely to benefit public interest litigants, such as nongovernmental organizations, than individual litigants and businesses. Together, these findings suggest a sensitivity to access to justice concerns when making costs orders, though some may argue that this sensitivity by the Court does not extend far enough.

Dangerous Warrants

2017 ◽  
Author(s):  
Nirej Sekhon
Keyword(s):  
Supreme Court ◽  
Fourth Amendment ◽  
Constitutional Rights ◽  
Police Discretion ◽  
Accurate Identification ◽  
Race And Class ◽  
The Supreme Court ◽  
Local Courts ◽  
State And Local ◽  
Municipal Court

The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a "warrant preference" on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms "non-compliance warrants": summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference. This article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.

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