Court File and Parties

COURT FILE NO.: CV-21-00671233 DATE: 20230629 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IC2 FUND, SICAV-FIS, Applicant AND: DAVID E. WIRES, Respondent

BEFORE: Cavanagh J.

COUNSEL: Nabila Abdul Malik for the Applicant Meaghan Richardson for the Respondent

HEARD: March 24, 2023

Endorsement

Introduction

[1] The Applicant, named in the Notice of Application as “IC2 Fund, SICAV-FIS”, brings this application against the Respondent, David E. Wires, for judgment recognizing an Arbitration Award issued on April 7, 2021 (the “Award”) by Mr. James Hope (the “Arbitrator”). The Arbitrator was the sole arbitrator in an arbitration proceeding commenced by Mr. Wires.

[2] Mr. Wires opposes the application. In addition, Mr. Wires moves for an order dismissing the application or, in the alternative, staying the application, on the grounds that (i) the named Applicant, IC2 Fund, SICAV-FIS, is not a legal entity and does not exist at law in Canada or Luxembourg, and (ii) the other identifying information in the Award identifies the recipient of the Award to be an entity with Luxembourg business registration number B148892 which has been placed into bankruptcy.

[3] The Applicant moves in this application for an order amending the title of proceeding to provide that the Applicant is named “ LA FRANÇAISE IC 2, SICAV-FIS also known as IC2 Fund, SICAV-FIS. Mr. Wires opposes this motion.

[4] For the following reasons: (a) the Applicant’s motion to amend the title of proceedings is granted, (b) Mr. Wires’ motion to dismiss or, alternatively, stay the application is dismissed, and (c) the Applicant’s application for a judgment recognizing the Award is granted.

[5] Mr. Wires is the respondent to this application. He was the applicant in the arbitration proceeding. In this endorsement, I refer to Mr. Wires by his name. When I use the term “Respondent” in this Endorsement, I refer to the Applicant in this application in its status as the Respondent to the arbitration proceedings.

Background Facts

Arbitration proceedings

[6] An agreement called a Bespoke Funding Agreement was made as of April 1, 2019 (the “Bespoke Funding Agreement”).

[7] By its written terms, the Bespoke Funding Agreement is between, among other parties, Mr. Wires and “Profile Investment, incorporated ... for and on behalf of IC2 Fund, SICAV-FIS, a regulated company existing under the Laws of Luxembourg whose registered number is B205456 in the Company Register of Luxembourg located at 60, avenue J.F. Kennedy, 1855 – Luxembourg (the “Fund”)”.

[8] The Bespoke Funding Agreement is expressly governed by certain General Terms and Conditions of Funding (“General Terms”) which are stated to constitute an integral part of the Bespoke Funding Agreement.

[9] The purpose of the Bespoke Funding Agreement, as expressed therein, is to provide funding to Mr. Wires (then a litigation lawyer in Toronto) and another Canadian law firm on behalf of named claimants for the pursuit of a claim and recovery of damages including against the People’s Republic of China.

[10] The General Terms include a separate definition of “Fund” to mean “IC2 Fund, SICAV-FIS, a company existing under the Laws of Luxembourg, whose registered number is B 148892 in the Company register of Luxembourg...”.

[11] The Bespoke Funding Agreement includes at clause 11 of the General Terms a provision that any dispute arising out of or in connection with Bespoke Funding Agreement shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).

[12] Pursuant to clause 11 of the General Terms, by Request for Arbitration dated June 1, 2020, Mr. Wires commenced an arbitration proceeding against the Respondent named as “IC2 Fund, SICAV-FIS formally known as La Francaise IC2 Fund, SICAV FIS Registration No. B205456 Luxembourg”.

[13] In the Request for Arbitration, Mr. Wires claims recovery of legal fees in the amount of $95,000, lost fee revenue, and lost opportunity as a result of alleged wrongful conduct of the funding party under the Bespoke Funding Agreement.

[14] The Respondent to the arbitration filed an Answer and a Counterclaim. The Respondent identified itself in its Answer and Counterclaim using the same short name that Mr. Wires had used in the Request for Arbitration: IC2 Fund, SICAV-FIS.

[15] The Counterclaim was settled. On February 10, 2021, prior to the issuance of the Award, the parties entered into a Full and Final Release in connection with settlement of the Counterclaim (the “Release”).

[16] The Award was issued by the Arbitrator on April 7, 2021. On the first page of the Award, the Respondent is identified by the name: “IC2 Fund, SICAV-FIS”. In a later paragraph in the Award describing the parties, the Respondent is described as follows:

The Respondent is IC2 Fund, SICAV-FIS. The Respondent is a special investment fund registered in Luxembourg. The Respondent provides third-party funding solutions for its international arbitration and litigation matters, on the advice and recommendation of its exclusive advisor, Profile Investment. The Respondent is a company existing under the laws of Luxembourg, registered number B148892 in the Company register of Luxembourg, with its address at 60, avenue J.F. Kennedy, L-1855 Luxembourg.

[17] In the Award, Mr. Wires’ claims were dismissed. The Award provides that the costs of the arbitration (the Arbitrator’s fee and the SCC administrative fee) shall be borne by Mr. Wires. In the Award, Mr. Wires is ordered to reimburse the Respondent for its reasonable costs in the amount of GBP 112,107.38 plus interest at the rate of 1% above the official UK base rate between the date of the Award and payment.

[18] The Luxembourg company with corporate registration number B148898 is named La Française IC Fund, SICAV-FIS and has been in voluntary liquidation since September 20, 2021 and then in bankruptcy since February 4, 2022. The Luxembourg company with corporate registration number B205456 is an active company registered since April 19, 2016 with a company name La Française IC 2, SICAV-FIS.

Procedural steps in this application

[19] The Notice of Application in the within application was issued on October 28, 2021. In the Notice of Application, the Applicant seeks judgment recognizing the Award. Mr. Wires served a Notice of Appearance on January 12, 2022.

[20] During a case conference on March 11, 2022, Mr. Wires’ counsel contended that the Applicant does not exist at law.

[21] The Applicant requested the consent of Mr. Wires to an amendment to the title of proceedings. Mr. Wires did not consent to amendment to the title of proceedings to change the name of the Applicant to “LA FRANÇAISE IC 2, SICAV-FIS also known as IC2 FUND, SICAV-FIS”. The Applicant brought a motion in writing.

[22] The Applicant attended in Civil Practice Court on September 15, 2022. The presiding judge issued an endorsement and set a hearing date for the application, the Applicant’s motion to amend the title of proceedings, and Mr. Wires’ motion for a stay of the application which were to be heard together.

Analysis

Should the Applicant be granted leave to amend the Notice of Application?

[23] In the Notice of Application, the Applicant is named “IC2 FUND, SICAV-FIS”. The Applicant moves for an order amending the title of proceeding to provide that the name of the Applicant is “ LA FRANÇAISE IC 2, SICAV-FIS also known as IC2 Fund, SICAV-FIS”.

[24] Rule 5.04(2) of the Rules of Civil Procedure provides:

At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[25] Rule 26.01 provides that on a motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[26] The Applicant submits that the requested amendment is a formality and should be allowed.

[27] The Applicant submits that “La Française IC 2, SICAV-FIS” is the full corporate name of the Applicant and that “IC2 Fund, SICAV-FIS” is a shorter version of the full name of the Applicant which it was legally permitted to use in the Bespoke Funding Agreement. The Applicant submits that the identity of the Applicant is clear and was known to all parties to the Bespoke Funding Agreement when it was made and when the arbitration was commenced.

[28] Mr. Wires does not oppose an amendment of the title of proceeding to correctly identify the party who has retained counsel and appears before the Court, namely, “La Française IC2, SICAV-FIS”. Mr. Wires opposes an amendment to identify this party using the words “also known as IC2 Fund SICAV-FIS”.

[29] Mr. Wires submits that an entity named “IC2 Fund, SICAV-FIS”, the name used the describe the Respondent in the first page of the Award, does not exist under the laws of Luxembourg and that this Court lacks jurisdiction to amend the Award to correct the name of the Respondent.

[30] Mr. Wires submits that if the requested amendment were to be allowed, the Court would be providing an affirmative acknowledgement of the “also known as” designation of the “IC2 Fund, SICAV-FIS” which use is not permissible under Luxembourg law (or, he submits, under Ontario law).

[31] Mr. Wires submits that leave to amend a pleading should be denied where (a) the responding party would suffer non-compensable prejudice, (b) the amendment would violate principles of joinder, or (c) the amended pleading contains a defect such that (i) the amended pleading is scandalous, frivolous, vexatious or an abuse of the court’s process; or (ii) the amended pleading discloses no reasonable cause of action. Mr. Wire submits that the requested amendment would be prejudicial to him, is not tenable at law and, if the amendment were to be granted, the amended pleading would disclose no reasonable cause of action.

[32] Both the Applicant and Mr. Wires provided expert evidence of Luxembourg law.

[33] In support of its motion to amend the title of proceedings, the Applicant filed expert evidence from Oliver Marquais, a practising lawyer in Luxembourg, who provided an opinion as to whether it was permissible under Luxembourg law for the Applicant to use the name “IC2 Fund, SICAV-FIS” when entering into a commercial agreement.

[34] Mr. Marquais’ evidence is that “La Française IC 2, SICAV-FIS” is the full corporate name of the Applicant. This entity is incorporated as a public limited company and registered with the Luxembourg Trade and Companies Register under number B205456. Mr. Marquais’ evidence is that the Applicant had obtained the necessary regulatory authorization under this name and it is entered on the official list of the Commission de Surveillance du Secteur Financier (CSSF) as such, in accordance with the Law on Specialized Investment Funds (“SIF Law”) with effect on May 24, 2016.

[35] Mr. Marquais’ evidence is that there is no strict general requirement under Luxembourg law for a company to use its full corporate name when entering into a commercial agreement. His evidence is that a company is, however, required under Luxembourg VAT related legislation to use its full corporate name when issuing invoices, but this requirement does not generally extend to other acts or operations performed by a company, unless otherwise expressly specified by law.

[36] Mr. Marquais’ opinion is that it is permissible under Luxembourg law for the Applicant to be referred to as “IC2 Fund, SICAV-FIS” when entering into a commercial agreement, including one that contains an arbitration clause. His opinion is that the Applicant may use either its full corporate name or the shorter name when performing its acts and operations (including entering into a commercial agreement that contains an arbitration clause), with the exception of issuing invoices and performing other acts and operations as may be required specifically by law, where the full corporate name must be used.

[37] Mr. Marquais’ opinion is that the use of the shorter name is not inconsistent with the laws and regulations of Luxembourg applicable to the Applicant and that the Applicant remains in full compliance with the SIF Law by using a shorter version of its full trade name when entering into commercial agreements, including one containing an arbitration clause.

[38] Mr. Wires submits that the Luxembourg entity “La Française IC2, SICAV-FIS” does not have a registered trade name under Luxembourg law and, as a result, this entity is not permitted under Luxembourg law to use a trade name such as “IC2 Fund SICAV-FIS”. In support of this submission, Mr. Wires relies on the affidavit of Carmen Schellekens, a Luxembourg lawyer who gave her opinion on questions asked of her concerning Luxembourg law.

[39] Ms. Schellekens reviewed the contractual and procedural documents and observed that they inconsistently reference two different Luxembourg company numbers which correspond to two different companies having the same registered address. Ms. Schellekens verified the Luxembourg companies with numbers B148892 and B205456 in the Luxembourg Company Register. She gave evidence that the company with number B148892 is a company named La Française IC FUND, SICAV-FIS. This company has been in voluntary liquidation since September 20, 2021 and then in bankruptcy since February 4, 2022. The company with number B205456 is an active company registered with the name La Française IC 2, SICAV-FIS.

[40] Ms. Schellekens’ evidence is that under Luxembourg corporate law, use of an alternative or “also known as” name (“trade name”) such as “IC2 FUND, (SICAV-FIS)” by a Luxembourg company is only permitted when such trade name is registered in the Luxembourg Company Register.

[41] Ms. Schellekens states that in accordance with Article 6 of the Luxembourg Company Register Act of 19 December 2002, as modified, a commercial company is required to apply for registration which must include the company name or business name and, where appropriate, the abbreviation and commercial sign used. Ms. Schellekens states that neither of the two companies registered a trade name so they were and are not permitted under Luxembourg law to use a trade name such as “IC2 Fund, (SICAV-FIS)”.

[42] In a reply affidavit, Mr. Marquais refers to Article 6 of the Luxembourg Company Register Act of 19 December 2002 upon which Ms. Schellekens relied for her opinion. Mr. Marquais cites the relevant part of Article 6 that reads:

Any commercial company with legal personality shall be required to apply for registration. The latter shall indicate: 1° the company name or business name and, where appropriate, the abbreviation and commercial sign used; ...

[43] Mr. Marquais’ evidence is that this law does not prohibit a company such as the Applicant from using a shorter version of its full corporate name when entering into contracts or an arbitration agreement or when being sued.

[44] I do not accept Ms. Schellekens opinion that Article 6 of the Luxembourg Company Register Act of 19 December 2002, as modified, prohibits a company from using a short version of its formal legal name in a commercial contract such as the Bespoke Funding Agreement or when being sued. The language of this law (that was appended as an exhibit to Mr. Marquais’ reply affidavit) does not provide for such a prohibition. I prefer the evidence of Mr. Marquais in this regard which is consistent with the language of the law. I accept Mr. Marquais’ evidence and conclude that the Applicant was not prohibited by Luxembourg law from using a shorter version of its name in the Bespoke Funding Agreement or from using this shorter version to identify itself as the Respondent in the arbitration proceeding.

[45] Mr. Wires relies on a paragraph in the Award in which the Respondent to the arbitration is described as IC2 Fund, SICAV-FIS, a company with registered number B148892. Mr. Wires contends that there is no evidence from the corporation with Luxembourg corporation number B148892 that it disclaims the benefit of the Award or confirms that it is not the recipient of the Award. Mr. Wires submits that these facts suggest that the true recipient of the Award is identified in the Award as the corporation with registration number B148892, a party which is not before the court and which is bankrupt. Mr. Wires submits that the Applicant is the author of the confusion and cannot now claim that the identity of the recipient of the Award is clear.

[46] When Mr. Wires commenced the arbitration under the Bespoke Funding Agreement, he named as Respondent in his Request for Arbitration “IC2 Fund, SICAV-FIS formally known as La Francaise IC2 Fund, SICAV FIS Registration No. B205456 Luxembourg”. This shows that Mr. Wires knew that the entity he identified and made claims against was a party to the Bespoke Funding Agreement. Mr. Wires used a short name, a formal name, and a specific corporate registration number under Luxembourg law (B205456), to identify the Respondent against which he made his claims. The Respondent filed an Answer and Counterclaim, and identified itself using the same short name that Mr. Wires had used in the Request for Arbitration. There is no evidence that the identity of the entity against which Mr. Wires made his claim and which counterclaimed against him was in dispute or an issue in the arbitration.

[47] I am satisfied that there was no confusion on the part of Mr. Wires about the identity of the entity he named as the Respondent in the Request for Arbitration and against which he made his claims pursuant to the arbitration clause in the Bespoke Funding Agreement.

[48] The Arbitrator, on the first page of the Award after the cover letter, identified the Respondent as “IC2 Fund, SICAV-FIS”, using the short name that both Mr. Wires and the Respondent had used to describe the Respondent. Although the Award also includes a paragraph stating that the Respondent is registered in the company register of Luxembourg as number B148892, I do not accept that this reference shows that the parties, or the Arbitrator, were confused about the identity of the entity against which Mr. Wires had made his claims. Mr. Wires knew that he had made a claim against a named company registered in the company register of Luxembourg as number B205456. The Arbitrator made the Award in favour of the party named as the Respondent by Mr. Wires (using the same short name he had used). The reference in the Award to number B148892 (the corporate registration number of a different company in bankruptcy) was clearly an error.

[49] In the arbitration, both Mr. Wires and the Respondent to the arbitration accepted that the Respondent was a party to the Bespoke Funding Agreement. Mr. Wires did not contend that the party he named as Respondent, using a short name, a formal name, and registered number, does not exist under Luxembourg law because the formal name of this company was not used in the Bespoke Funding Agreement. I am satisfied that the entity named by Mr. Wires as the Respondent to his arbitration claims, using a short name and a formal name, and with registration number B205546 in the Luxembourg Trade and Companies Register, exists under the law of Luxembourg. I reject Mr. Wires’ submission that the Arbitrator’s use of the short name for the Respondent in the Award should be taken to mean that the Respondent, so named, does not exist under Luxembourg law.

[50] I am satisfied that motion to amend the Notice of Application to change the title of proceeding to read “La Française IC 2, SICAV-FIS also known as IC2 Fund, SICAV-FIS” should be granted. The requested amendment is permitted by rule 5.04(2) of the Rules of Civil Procedure. Through this amendment, the Applicant is correctly named.

[51] Mr. Wires intended to make claims against this entity, so named, and he did so by commencing the arbitration proceeding. He will not be prejudiced by the amendment to the title of proceeding. An application for recognition and enforcement of an arbitral award by a party that asserts that it is the recipient of an arbitral award is tenable at law. Such a claim does not fail to disclose a reasonable cause of action.

Should the application be stayed or dismissed for lack of standing?

[52] Mr. Wires moves to stay or dismiss the application on the ground that the Applicant (whether or not an amendment to the title of proceeding is granted) is not the Award recipient and, therefore, the Applicant lacks standing to seek an order for recognition or enforcement of the Award.

[53] In support of this motion, Mr. Wires makes many of the same submissions that he made in opposition to the Applicant’s motion to amend the title of proceedings in the Notice of Application.

[54] As I have noted, the Respondent to the arbitration proceeding commenced by Mr. Wires is the company he named in his Request for Arbitration using the shorter name, the formal name, and registration number B205456 for the company. This company exists under Luxembourg law.

[55] For reasons I have given, I am satisfied that there is no confusion by the parties to the arbitration about the identity of the party against which Mr. Wires made his claims in the arbitration. I am satisfied that the Applicant making the application for recognition and enforcement of the Award is the Award recipient.

[56] In support of his motion and in opposition to the application, Mr. Wires also relies on the Business Names Act, R.S.O. 1990, c. B.17. Section 2(1) of this statute provides that no corporation shall carry on business or identify itself to the public under a name other than his or her own name unless the name is registered by that individual. Section 7 provides that a person carrying on business in contravention of s. 2(1) is not capable of maintaining a proceeding in a court in Ontario in connection with that business except with leave of the court.

[57] Mr. Wires submits that because he, an Ontario lawyer representing an Ontario client, together with another Ontario law firm, sought litigation funding for a claim to be made in a proceeding in Ontario and entered into the Bespoke Funding Agreement with the Applicant for this purpose, the Applicant must be taken to have been carrying on business in Ontario and to be subject to the Business Names Act.

[58] I disagree. The Applicant is described in the Bespoke Funding Agreement as a Luxembourg company with a Luxembourg address. The General Terms provide that the Funding Documents and the rights and obligations of the parties shall be governed by, construed and determined in accordance with the laws of England & Wales unless otherwise agreed in writing. There is no evidence that the Applicant carried on business in Ontario.

[59] There is also no evidence that the Applicant identified itself to the public in Ontario using a name other than its own name. The Bespoke Funding Agreement is a private contract. The fact that this private contract identified the “Fund” using a shorter name than the formal name of the company with registration number B205456 does not constitute identifying itself to the public in Ontario.

[60] I am satisfied that the Applicant exists at law and is the Award recipient. The Applicant is not precluded by the Business Names Act from bringing this application. In any event, I have allowed the requested amendment to the Notice of Application so the Applicant is named using the formal legal name of the company. There would be no violation of the Business Names Act by the continuation of this proceeding if this statute applied to the Applicant.

[61] Mr. Wires’ motion to dismiss or, alternatively, stay the application is dismissed.

Should the Arbitration Award be recognized?

[62] In the Notice of Application, the Applicant seeks recognition and enforcement of the Award.

[63] In Ontario, international commercial arbitral awards are enforceable through the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5 (the “ICAA”).

[64] The Model Law contains provisions with respect to recognition of an arbitral award. Article 35 of the Model Law provides:

Article 35. Recognition and enforcement

(1) An arbitral award, irrespective of the country in which it was made, shall be recognized as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this article and of article 36.

(2) The party relying on an award or applying for its enforcement shall supply the original award or copy thereof. If the award is not made in an official language of this State, the court may request the party to supply a translation thereof into such language.

[65] The Applicant has supplied a certified copy of the Award. The Applicant is entitled to recognition of the Award as binding, subject to article 36 of the Model Law.

[66] Article 36 of the Model Law provides that recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only on grounds specified therein.

[67] Mr. Wires opposes the application for recognition and enforcement of the Award on various grounds.

Does the Applicant have standing to bring this application?

[68] Mr. Wires submits that the Applicant, as named in the Notice of Application, does not exist at law and has not been registered in any forum as an “operating as” or “also known as” name, contrary to the law of Luxembourg and the law of Ontario. Mr. Wires submits that even if I were to grant the amendment to the title of proceedings sought by the Applicant, the Applicant, as named in such an amendment, does not have status to bring this application because it is not the award recipient.

[69] Mr. Wires submits that the recipient of the Award is “IC2 Fund, SICAV-FIS” and that this is a non-existent entity.

[70] For reasons I have given for my disposition of the Applicant’s motion to amend the Notice of Application and Mr. Wires’ motion to stay or dismiss the application, I disagree that the named recipient of the award is a non-existent entity. The recipient of the Award is the entity named by Mr. Wires in his Request for Arbitration, a valid and subsisting Luxembourg company.

Is the Applicant estopped from enforcement of the Award and continuation of these proceedings by virtue of the Release?

[71] Mr. Wires submits that the Release applies to the Applicant, a releasor in the Release, and that the Applicant is precluded by estoppel from commencing the claims made against him in this application. Mr. Wires submits that since there was no delineation in the Award as to the portion of the costs claimed that were for the main action, and the Award includes the Arbitrator’s fees, the Release applies and the Applicant is estopped from commencing this application to recover fees for the Arbitrator’s costs or fees associated with the main claim.

[72] Mr. Wires’ objection to recognition and enforcement of the Award based on the Release does not fall within the grounds specified in Article 36 of the Model Law for refusing recognition or enforcement of an arbitral award in the ICAA.

[73] The Release, given as part of the settlement of the Counterclaim in the arbitration proceeding, provides for a release of claims made by the Applicant (the Respondent in the arbitration). The Release expressly provides that “[n]othing in this Release shall prevent the Releasors from seeking recovery of costs and disbursements that were incurred by the Releasors in defending the Claim in any and all jurisdictions”.

[74] In Procedural Order No. 9 dated February 13, 2021, the Arbitrator wrote that Respondent (the Applicant on this application) had confirmed that the parties had reached a settlement on the counterclaim, including as to costs. The Arbitrator wrote that he will proceed to determine the Respondent’s application for an order dismissing the Claimant’s claim with prejudice and costs. The Arbitrator ordered that the Respondent is invited to provide submissions “on the quantum and principle of costs” by a specified date and the Claimant was given the opportunity to respond by a specified date.

[75] In the Award, at para. 48, the Arbitrator addressed the settlement in respect of which the Release was given and confirmed that it related only to the counterclaim. The Arbitrator, at para. 64, identified the issues to be determined. The issues included whether the Respondent is entitled to reimbursement of its costs with respect to the Claimant’s claim and, if so, the amount of the Respondent’s reasonable costs. The Arbitrator, at para. 103 of the Award, was satisfied that a costs award may be made in the circumstances. The Arbitrator determined the amount of the reasonable costs and awarded costs of the Claim to be paid by Mr. Wires to the Applicant in the amount of GBP 112,107.38. Mr. Wires did not seek to appeal the Award.

[76] By making this application, the Applicant seeks recognition of the Award. The Applicant is not making other substantive claims about the entitlement of the Applicant to an award of costs or the amount of costs to be awarded. These issues were determined by the Arbitrator. The Applicant is not released by the terms of the Release or estopped from seeking recognition of the Award.

Should the application be denied because the Arbitrator was appointed contrary to the agreement of the parties?

[77] Mr. Wires relies on Article 36(1)(a)(iv) of the Model Law to oppose recognition and enforcement of the Award.

[78] Article 36(1)(a)(iv) of the Model Law provides that recognition or enforcement of an arbitral award may be refused if the party against whom it is invoked furnishes proof that the composition of the arbitral tribunal or the arbitration procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place.

[79] The Bespoke Funding Agreement and the General Terms thereof provide that any dispute arising out of the agreement shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Arbitrator was appointed pursuant to the SCC Expedited Rules of Arbitration.

[80] Mr. Wires submits that the Arbitrator was not in accordance with the agreement of the parties because at the time of the appointment of the Arbitrator, Mr. Wires submitted terms for the appointment of the arbitrator which included that the arbitrator “has no past, present or potential relationships with third party litigation funding companies or arbitration institutes in London ...”. Mr. Wires states that he discovered after the issuance of the Award that the Arbitrator had direct involvement with the Applicant’s principal two years prior to the appointment in which they jointly prepared for and participated in a panel at which they discussed security for costs in international arbitrations.

[81] Mr. Wires states that the Arbitrator had personally contributed to articles authored by the principal of the Applicant, had business relationships through his firm with the Applicant’s arbitration business, and had been involved in conferences wherein a sponsorship was provided from the Applicant’s principal’s law firm.

[82] During the arbitration proceedings, Mr. Wires raised these objections to the independence and impartiality of the Arbitrator. His challenge was addressed by the SCC.

[83] By letter dated December 17, 2020, the SCC wrote to the parties in respect of Mr. Wires’ challenge to the Arbitrator. The SCC dismissed Mr. Wires’ challenge for reasons to be provided shortly. The reasons for the dismissal of Mr. Wires’ challenge were released on December 23, 2020. The SCC found that the objection to the Arbitrator (based on his prior relationship with the principal of the Applicant) were available to Mr. Wires upon the Arbitrator’s appointment and the objection on these grounds was dismissed as time barred under the SCC rules. The SCC went on to find that the circumstances upon which Mr. Wires relied would not lead to justifiable doubts as to the Arbitrator’s impartiality and independence.

[84] With this decision, the SCC addressed Mr. Wires’ argument that the appointment of the Arbitrator was not in accordance with the agreement of the parties. Mr. Wires did not challenge or appeal the decision of the SCC.

[85] Given this context, I conclude that Mr. Wires has not provided proof that the composition of the arbitral tribunal was not in accordance with the agreement of the parties.

Was the Arbitrator appointed contrary to English law?

[86] Mr. Wires submits that the Award should not be recognized because the appointment of the Arbitrator was contrary to English law because the Arbitrator was not impartial.

[87] Mr. Wires did not provide evidence of English law with respect to appointment of arbitrators. He cites a published decision of the U.K. Supreme Court in Halliburton Company (Appellant) v. Chubb Bermuda Insurance Ltd., [2020] UKSC 48 which held that it is axiomatic that a judge or arbitrator must be impartial and that a judge or arbitrator who is not in fact subject to any bias must also not give the appearance of bias. Mr. Wires relies on this case as confirming the test under English law on a challenge to the impartiality of an arbitrator as being whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

[88] Mr. Wires also relies on Article 12 of the Model Law which, he submits, is adopted in English law. Article 12 of the Model Law provides that (1) a person approached in connection with his possible appointment as an arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence, and (2) an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties.

[89] Mr. Wires submits that the Arbitrator failed to disclose his relationship with the principal of the Applicant personally, his law firm, and his arbitration institute and that these facts would give rise to justifiable doubts as to the Arbitrator’s impartiality and independence. Mr. Wires submits that the lack of impartiality or appearance of lack of impartiality on the part of the Arbitrator supports his request that an order be made refusing to recognize or enforce the Award.

[90] Mr. Wires submits that he is not precluded from raising his challenge to the impartiality of the Arbitrator on this application notwithstanding that he made the same challenge before the SCC, unsuccessfully.

[91] I disagree that it is open to Mr. Wires to challenge the independence or impartiality of the Arbitrator in response to this application, particularly after having unsuccessfully made such a challenge on the same grounds before the SCC, the administrator of the arbitration proceedings. The Arbitrator was duly appointed in accordance with the agreement of the parties in the Bespoke Funding Agreement. A challenge to the Arbitrator’s independence or impartiality was made to the administrator of the arbitration proceeding, and the challenge was dismissed. No appeal was taken from this decision. In my view, it would be an abuse of process to allow Mr. Wires to relitigate his challenge in response to this application.

[92] Mr. Wires has failed to furnish proof that the Arbitrator’s appointment was not in accordance with the agreement of the parties or, failing such agreement, that his appointment was not in accordance with the law of England where the arbitration took place.

Disposition

[93] For these reasons:

a. The Applicant’s motion to amend the title of proceeding in the Notice of Application and in all documents that have been or will be issues, served or filed in this proceeding to provide that the Applicant is named “La Française IC 2, SICAV-FIS also known as IC2 Fund, SICAV-FIS” is granted and the title of proceeding of proceeding is amended accordingly.

b. Mr. Wires’ motion for an order dismissing or, in the alternative, staying the application is dismissed.

c. The Applicant’s application for judgment recognizing the Award is granted.

[94] I encourage the parties to resolve the issue of costs. If they are unable to do so, the Applicant may send written submissions (not longer than three pages excluding costs outline or bill of costs) within 10 days. Mr. Wires may submit responding submissions within 10 days thereafter (also not longer than three pages). If so advised, the Applicant may send reply submissions (one page) within 5 days thereafter.

[95] I ask the parties to provide me with an approved form of order to be issued.

Cavanagh J.

Date: June 29, 2023