Ontario Court Favours Place of Arbitration over Forum Selection Clause in Asset Purchase Agreement

Tyler O’HenlyAlternative Dispute Resolution (ADR), Appeals, Arbitration, Business Dispute Arbitrator, Business Disputes, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Forum Challenges, International Litigation, Jurisdictional Challenges, Sale of Business Arbitrator, Sale of Business Claims, Sale of Business Disputes0 Comments

In Tehama Group Inc v. Pythian Services Inc., 2024 ONSC 1819, the Ontario Superior Court of Justice held that the place of an arbitration, not a forum selection clause in a contract, determines the jurisdiction that recourse against an arbitral award must be taken in. The litigants were parties to a cross-border asset purchase agreement (the “APA”). The APA included an arbitration clause for disputes regarding the calculation of the purchase price, and the parties appointed “the Toronto office” of an accounting firm as arbitrator for these disputes. The APA also included broad forum selection and governing law clauses, which required “any suit, action or other proceeding arising out of this Agreement” to be brought exclusively in the courts of New York and in accordance with its laws. A dispute arose regarding an earnout clause in the APA, and the parties proceeded to arbitration.  When the Toronto-based arbitrator rendered an … Read More

Popack v. Lipszyc: Recognition and Enforcement of Arbitration Awards – Clarifying the term “binding”

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Civil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Enforcement of Foreign Arbitral Awards, Real Estate Litigation, UNCITRAL0 Comments

Popack v. Lipszyc appears to be the first Ontario Court of Appeal case on the recognition and enforcement of arbitration awards under the 2017 International Commercial Arbitration Act (“ICAA”). The ICCA includes the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and the 2006 amended version of UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). The appellants used articles 35 and 36 of Model Law to apply for the recognition and enforcement of the international commercial arbitration award they received in August 2013 against the respondents. While the application judge dismissed the application, the Court of Appeal allowed the appeal. The Court of Appeal stated that “in Ontario, a strong “pro-enforcement” legal regime” exists for the recognition and enforcement of international commercial arbitration awards, as grounds for refusal are “to be construed narrowly”. Importantly, the Court, and not the tribunal, is the proper avenue to … Read More