The respondent in an application to set aside an international arbitral award brought a motion to strike three affidavits filed by the applicant.
The court determined that the test for admitting fresh evidence on an application to set aside an international arbitral award on procedural fairness grounds is akin to the test applied on judicial review, which requires reasonable diligence, rather than the Palmer test for appeals.
Applying this test, the court struck two affidavits in their entirety because the evidence could have been raised before the arbitral tribunal.
The court also struck portions of a third affidavit that contained improper opinion evidence and speculation.
