Stéphanie Desjardins

Mexico sought to set aside an international arbitral award rendered under NAFTA Chapter 11 in which an arbitral tribunal found Mexico liable for breaching the fair and equitable treatment standard and ordered Mexico to pay damages of approximately USD $80.9 million to American investors who operated casinos in Mexico.

Mexico alleged that the tribunal denied it a full and fair opportunity to present its defense by: (1) denying production of certain documents Mexico characterized as "key documents"; and (2) failing to address Mexico's argument regarding the availability of judicial review remedies in Mexican courts.

The court dismissed Mexico's application, finding that the arbitral proceedings were comprehensive and fair, that Mexico's document production denials were reasonable exercises of tribunal discretion, and that Mexico's failure to receive explicit reference to a minor argument did not constitute procedural unfairness.

The appellant brought a NAFTA Chapter 11 claim against Mexico, which was dismissed by a three-member arbitration tribunal.

The appellant later discovered that the Mexican-appointed arbitrator had communicated with Mexican officials during the arbitration regarding potential future appointments.

The application judge found a reasonable apprehension of bias but declined to set aside the award, reasoning that the other two arbitrators were impartial.

The Court of Appeal allowed the appeal and set aside the award, holding that a reasonable apprehension of bias concerning one member of a tribunal taints the entire panel and cannot be balanced away as a minor procedural error.

The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) brought a motion for leave to intervene as a friend of the court in an appeal concerning the test for procedural unfairness under the Model Law in international commercial arbitration.

The underlying appeal involved an arbitral claim by Vento Motorcycles Inc. against the United Mexican States under NAFTA, where Vento alleged denial of procedural fairness.

CIPPIC proposed an alternative "material" procedural fairness violation test.

The Court of Appeal dismissed CIPPIC's motion for leave to intervene, finding that CIPPIC did not sufficiently link its expertise to the issue, the case was a private dispute between sophisticated parties, and CIPPIC's proposed arguments risked expanding the scope of the appeal without providing a useful contribution.

JSC Chukotka Mining and Geological Company (Chukotka) sought to recognize and enforce an arbitral award issued by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC) against Medivolve Inc. (Medivolve).

Medivolve opposed this application and brought a cross-application to set aside the arbitral award, arguing improper notice of the arbitration proceedings, inability to present its case, and unequal treatment by the arbitral tribunal.

The court found that Medivolve had received proper actual notice of the arbitration, despite courier delivery failures, and that its own dilatory actions contributed to its alleged inability to present its case.

The court also determined that the tribunal did not treat the parties unequally.

Consequently, the court granted Chukotka's application to recognize and enforce the arbitral award and denied Medivolve's application to set it aside, awarding costs to Chukotka.

The applicant, Vento Motorcycles, Inc., sought to set aside an arbitral award rendered by an ICSID tribunal, alleging two grounds: inability to present its case due to the tribunal's refusal to allow a witness to testify in response to impeachment evidence, and reasonable apprehension of bias by one of the arbitrators due to undisclosed offers of future appointments from the respondent.

The court dismissed the application, finding that Vento was able to present its case and that while a reasonable apprehension of bias existed for one arbitrator, it did not undermine the reliability of the unanimous award or produce real unfairness, especially given the collegial nature of the tribunal and the significant prejudice of redoing the arbitration.