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DISPUTE RESOLUTION IN THE ENERGY SECTOR 315
DISPUTE RESOLUTION IN THE ENERGY SECTOR:

WITHER THOU GOEST?
ANN RYAN ROBERTSON* AND ELIZABETH WHITSITT**
This article examines developments in international commercial arbitration and investment

treaty arbitration relevant to the energy sector in Canada and the United States and
discusses their advantages and disadvantages. Jurisdictions in Canada and the US have
taken a wide variety ofapproachesto legislative schemes and their interpretation. This has
created uncertainty respecting the involvement of the courts in cross-border disputes where
the parties have agreed to an arbitration clause. Further, the Canada-United States-Mexico
Agreement has eliminated investment treaty arbitration between Canada and the US which
existed in the North American Free Trade Agreement, limiting the options of investors to
pursue investment treaty claims. These developments may clarify how energy sector
participants should strategically manage their contractual arrangements and arbitration
clauses and approach disputes.
TABLE OF CONTENTS
I. INTRODUCTION ............................................. 315

II. CANADIAN AND US DEVELOPMENTS IN
INTERNATIONAL COMMERCIAL ARBITRATION ..................... 316
A. CANADIAN DEVELOPMENTS ............................... 316
B. DEVELOPMENTS IN THE US ............................... 326
III. DEVELOPMENTS IN INTERNATIONAL INVESTMENT ARBITRATION:
NAFTA CHAPTER 11 TO CUSMA CHAPTER 14 ..................... 334
IV. CONCLUSION .................................................. 337
I. INTRODUCTION
The majority of international arbitrations involve disputes within the energy sector. Yet,
international arbitrationmechanisms of dispute resolution -whether in the private or public
domain - are in the midst of transformation. In recent years, a series of developments in
international arbitrationhave prompted important questions about the cost and efficiency of
this form of dispute settlement. And, even more fundamentally, whether and how arbitration
is any different from other forms of dispute settlement such as litigation. In the public law
domain, international investment treaty arbitration has become a lightning rod for criticism
which has prompted a variety of responses from various players operating in that regime.
With this context in mind, this article considers some of the key developments taking place
inboth international commercial arbitrationand investment treaty arbitration.Because of the
significance of the commercial relationship between Canada and the United States in the
energy sector, this article focuses on evolution in arbitration that particularly affects the
Ms. Robertson is the global President of the Chartered Institute of Arbitratorsfor the year 2021. Named
to Global Arbitration Review's "Who's Who Legal: Arbitration" - a guide to the world's leading
commercial arbitrators, Ms. Robertson serves as both arbitrator and counsel in international and
domestic arbitrations in a variety of complex business disputes across a number of industries. Most
recently, Ms. Robertson was appointed by the US government as a Chapter 31, USMCA Panelist.
Associate Professor, Faculty of Law, University of Calgary.
316 ALBERTA LAW REVIEW (2020) 58:2
North American region. The ultimate objective of this article is to illuminate prospective
advantages and disadvantages associated with these developments.
Afterthis introductory section, this article highlights developments within Canada and the
US that affect, or have the potential to affect, the international arbitration process. In doing
so, it will examine efforts to harmonize international commercial arbitration legislation
across Canadian jurisdictions and consider some of the issues that have recently been the
subject of consideration in Canadian courts, including unconscionable arbitration
agreements, third party interests, and consolidation of arbitral proceedings (Part IIA). This
discussion is followed by consideration of developments taking place in the US that affect
international arbitration proceedings, including arbitrability, non-signatories, and U.S.C.
Section 1782 (Part IIB).' This article next examines the reformations taking place in
investment treaty arbitration. Since the inception of the North American Free Trade
Agreement Between the Government of Canada, the Government of the United Mexican
States and the Government of the UnitedStates ofAmerica in 1994, Canadian and US (and
Mexican) investors operating in the energy sector have had access to the arbitration
mechanism established in Chapter 11.2 But, the new Canada-United States-Mexico
Agreement currently foregoes any form of investor-state dispute settlement under its
investment chapter as between Canada and the US.3 This article outlines these changes and
then discusses the implications for energy investors in the North American region (Part III).
Part IV provides our concluding remarks.
II. CANADIAN AND US DEVELOPMENTS

IN INTERNATIONAL COMMERCIAL ARBITRATION
A. CANADIAN DEVELOPMENTS
1. LEGISLATION AND RENEWED EFFORTS TO HARMONIZE
One of the most significant nationwide developments in the field of international

arbitration has been the Uniform Law Conference of Canada's (ULCC) recent work on the
harmonization of international commercial arbitration laws across Canada.4 The impetus for
this effort was manifold. In 2006, the United Nations Commission on International Trade
Law (UNCITRAL) was prompted to amend its Model Law in order to address a series of
developments in arbitral practice that were not addressed in its Model Law (1985).5 Its 2006
28 USC § 1782 (2016).

2 17 December 1992, Can TS 1994 No 2 (entered into force 1 January 1994) [NAFTA].
Protocolreplacingthe North American Free Trade Agreement with the Agreement between Canada,
the United States, and the UnitedMexican States, 30 November 2018, Can TS 2020 No 5 (entered into
force 1 July 2020, amended 10 December 2019) [CUSMA].
4 See UniformLaw Conference of Canada Working Group on Arbitration Legislation, "DiscussionPaper:
Towards a New Uniform International Commercial Arbitration Act," online: <wcart.files.wordpress.
com/2014/05/2013 -ulcc-discussion-paper-towards-a-new-uniform-international-commercial-a.pdf>
[ULCC Discussion Paper]; Uniform Law Conference of Canada Working Group on Arbitration
Legislation, "International Commercial Arbitration: Final Report and Commentary of the Working
Group on New Uniform Arbitration Legislation," online: <www.ulcc.ca/images/stories/2014_pdf_
en/2014u1cc0014.pdf> [ULCC Final Report].
5 More on UNCITRAL and its work in international commercial arbitration procedures can be found
online: <uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration>; United Nations
Commission on International Trade Law, "UNCITRAL Model Law on International Commercial
Arbitration," online: <uncitral.un.org/sites/uncitml.un.org/files/media-documents/uncitral/en/06-54671_
ebook.pdf> [UNCITRAL Model Law].
amendments include provisions about the interpretation of the Model Law as an international
instrument, the requirement that an arbitration agreement be written, the authority of an
arbitral tribunal to make interim and ex parte orders, and the authority of courts to enforce
interim orders.6 In addition, decades of arbitral practice highlighted incongruities in the
relevant provincial legislation governing international commercial arbitrations.7
Those inconsistencies date back to efforts made by the ULCC to harmonize Canada's
international arbitrationin the mid-1980s. In 1986, Canada and its provinces adopted the
New York Convention and UNCITRAL's Model Law (1985).8 But the manner in which some
provinces chose to implement legislation reflecting adoption of these instruments differed.9
Some provinces chose to append the Model Law and New York Convention as schedules to
their legislation.' 0 Other provinces, such as British Columbia and Quebec, incorporated the
language of these instruments directly into their legislation." British Columbia also included
a number of provisions not contemplated in the Model Law. For example, British Columbia's
International Commercial Arbitration Act included provisions on consolidation of
proceedings, interest and costs, and the discretion of arbitral tribunals to make decisions
about the rules of law applicable in any given case."
Still, other incongruities between Canadian provinces related to the limitation periods that
apply to the recognition and enforcement of arbitral awards. Limitation periods across
Canadian provinces have varied as a result of different attitudes about whether limitation
periods are matters of procedure or substance. Common law jurisdictions typically
characterize limitation periods as procedural (for example, Alberta) while civil law
jurisdictions (for example, Quebec) consider them to be matters of substantive law. In 2010,
the Supreme Court of Canada examined whether any limitation period applies to the
recognition and enforcement of foreign arbitral awards in Alberta.1 3 The Supreme Court
ultimately held that recognition and enforcement of foreign arbitral awards are subject to
6 See "UNCITRAL Model Law on International Commercial Arbitration 1985 with amendments as
adopted in 2006," online: <uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-
09955_eebook.pdf> [UNCITRAL Model Law 2006].
See ULCC Discussion Paper, supra note 4 at paras 6-7.
8 UNCITRAL Model Law 2006, supra note 6; Convention on the Recognition and Enforcement of
ForeignArbitral Awards, 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959) [New York
Convention]. For a discussion of Canada's place in the development of sensibilities about international
commercial arbitration during this period see Errol P Mendes, "Canada: A New Forum to Develop
Cultural Psychology of International Commercial Arbitration" (1986) 3:3 J Intl Arb 71.
9 Canada's adoptionofUNCITRALModelLaw(1985)andtheNew YorkConventionhasbeenthesubject
of extensive scholarly comment: see generally Robert K Paterson & Bonita J Thompson, eds,
UNCITRALArbitrationModelin Canada:Canadian InternationalCommercialArbitrationLegislation
(Toronto: Carswell, 1987). See also Mendes, ibid; Edward C Chiasson, "Canada: No Man's Land no
More" (1986) 3:2 J Intl Arb 67; Henri C Alvarez, "The Role of Arbitration in Canada - New
Perspectives" (1987) 21:2 UBC L Rev 247; JohnEC Brierley, "Quebec's New (1986) ArbitrationLaw"
(1987) 13:1 Can Bus LJ 58.
10 See International Commercial Arbitration Act, SA 1986, c I-6.6; The International Commercial
Arbitration Act, SS 1988-89, c I-10.2; The International Commercial Arbitration Act, SM 1986-87, c
32, CCSM, c C151; International Commercial Arbitration Act, SNB 1986, c I-12.2; International
Commercial Arbitration Act, RSN 1990, c I-15; International Commercial Arbitration Act, RSNWT
1988, c I-6; International Commercial Arbitration Act, RSNS 1989, c 234; International Commercial
Arbitration Act, RSO 1990, c 1.9; International Commercial Arbitration Act, RSPEI 1988, c I-5;
International CommercialArbitration Act, RSY 1986, c 14 (Supp), as repealed by OIC 2003/233, s 3.
See International Commercial Arbitration Act, RSBC 1996, c 233 as it appeared on 21 April 1997
[ICAA (1997)]. Quebec incorporated the UNCITRAL Model Law (1985) by making amendments to the
CCQ and the Code of CivilProcedure, CQLR, c C-25, as replaced by the CCP.
12 ICAA (1997), ibid, ss 27- 28, 31.
13 Yugraneft Corp v Rexx Management Corp, 2010 SCC 19.
such time constraints. 4 More particularly, it determined that in Alberta, those seeking
recognition and enforcement of such awards are subject to the two year limitation period
outlined in section 3 of Alberta's Limitations Act.' 5 The Supreme Court's ruling provided
greater certainty about the applicability of limitation periods to the recognition and
enforcement of foreign arbitral awards across Canada. Its determination about the length of
the applicable limitation period is specific to Alberta. As a result, those seeking enforcement
of foreign arbitral awards in Canada are subject to varying time constraints depending on the
jurisdiction(s) in which they pursue such actions. The lack of harmony across Canada's
provinces with respect to international arbitrationprocedures and award enforcement create
complexities for foreign commercial interests looking to establish the seat of arbitration in
Canada. In short, Canada needed to keep pace if it was to maintain its competitive advantage
for attracting arbitration business and continue to facilitate global commerce.16
In March 2014, the ULCC's Working Group on ArbitrationLegislation (Working Group)

proposed a new Uniform International CommercialArbitration Act (Uniform ICAA), which
was subsequently approved by the ULCC." The Uniform ICAA incorporates, by way of
Schedules, both the New York Convention and the 2006 Model Law. Similar to its
predecessor, the Uniform ICAA permits limited judicial intervention in international
commercial arbitration cases. It also adopts amendments that were made to the Model Law
in 2006, which accommodate electronic methods of communication in the formation of
arbitration agreements, the authority of an arbitral tribunal to make interim and ex parte
orders, and the authority of courts to enforce interim orders.'8 The ULCC also examined a
number of other issues affecting international arbitration in Canada, including limitation
periods applicable to recognition and enforcement of arbitral awards. Ultimately, it
recommended that a ten-year limitation period apply to the recognition and enforcement of
such awards across Canada. 19
The ULCC's work has since been considered and has prompted legislative change in some
Canadian provinces. Quebec incorporatedthe substance of the 2006 Model Law amendments
in its new Code of Civil Procedure in 2016.20 In 2017, Ontario updated its International
Commercial Arbitration Act and implemented the Uniform ICAA. 2British Columbia also
subsequently amended its InternationalCommercialArbitration Act in 2018.22 As inthe mid-
1980s, British Columbia incorporated amendments in the 2006 Model Law throughout its
new international arbitration legislation. It also included provisions to address other
developments in arbitration practice that are not dealt with in the Model Law. One such
example is its treatment of third party funding. British Columbia's new International
Commercial Arbitration Act expressly provides that third party funding is not contrary to
"4 Ibid atparas 16-22.

"5 Ibid at para 39; Limitations Act, RSA 2000, c L-12.
16 See Uniform Law Conference of Canada Civil Law Section, "International Commercial Arbitration
Report ofthe Working Group," online: <www.ulcc.ca/en/civil-section/ 108-civil-section-current-topics/
1318-international-commercial-arbitration>.
"7 ULCC Final Report, supra note 4, Appendix 1.
18 Ibid at 30, s 4(1) (the Model Law applies, subject to provisions of the act and section 4(2), and the
definition and form of arbitrationagreement adopted by the ULCC is Option I in the Model Law).
19 Ibid, Appendix 1, s 11.
20 CCP, supra note 11.
21 International Commercial Arbitration Act, 2017, SO 2017 c 2, Sch 5 [ICAA (Ont)].
22 International Commercial Arbitration Act, RSBC 1996, c 233 [ICAA (BC)].
public policy and, therefore, not a ground upon which to refuse recognition and enforcement
of an arbitral award.23 A more thorough discussion of British Columbia's legislation,
including a comparison with other jurisdictions, such as Ontario, would undoubtedly be
useful, but is beyond the scope of this discussion. The primary point of this discussion is to
highlight the fact that the remaining majority of provincial and territorialjurisdictions within
Canada have not yet amended their statutes governing international commercial arbitration."
Even where such amendments have taken place, provinces may have taken different
approaches with the potential for foreign users to face different rules across Canadian
jurisdictions.
Despite these differences, movements within Canada to modernize and harmonize

international commercial arbitration rules should not be dismissed. Such efforts signal
Canada's desire to ensure that it is an appealing seat of arbitration for international
businesses in all industry sectors. More fundamentally, the ULCC's renewed efforts reinforce
the importance of contracting party autonomy and the limited role for judicial scrutiny in
international commercial arbitrations. Moreover, the new Uniform InternationalCommercial
ArbitrationAct (by adopting the Model Law 2006) clarifies the authority of arbitraltribunals
over certain procedural matters - a development that ensures those who contracted for
arbitration do not need to avail themselves to court processes to preserve their rights.
2. EXCEPTIONAL JURISDICTIONAL CHALLENGES:

UNCONSCIONABLE ARBITRATION AGREEMENTS
Canadian courts typically defer to arbitrators to clarify the jurisdictional parameters in

which they operate. Indeed, the Supreme Court of Canada has found that any challenge to
an arbitrator'sjurisdiction to hear a dispute must be decided by the arbitrator unless the
challenge involves a question of law.25 Where such a review involves a question of mixed
law and fact, courts should only consider such challenges if questions of fact canbe assessed
by "superficial examination of the documentary proof in the record and where the court is
convinced that the challenge is not a delaying tactic or will not prejudice the recourse to
arbitration."26 This rule has since been applied by other Canadian courts.27
The recent decision of the Supreme Court in Uber Technologies Inc. v. Heller clarifies
that Canadian courts may intervene on jurisdictional issues where arbitration clauses are
unenforceable.28 Giventhe variety of contractual relationships underpinning Canada's energy
23 Ibid, s 36(3).
24 Here I note that Alberta - through its law reform institute - engaged in significant consultations on
the ULCC's work and the Uniform ICAA. As a result of that work, the Alberta Law Reform Institute
ultimately recommended that Alberta adopt the 2014 Uniform ICAA. See Alberta Law Reform Institute,
"Uniform International Commercial Arbitration Act, Final Report 114," online: <www.alri.ualberta.
ca/wp-content/uploads/2020/03/FR1l14.pdf>. However, Alberta's InternationalCommercialArbitration
Act, RSA 2000, c I-5 [ICAA (Alta)] has yet to be amended.
25 Dell Computer Corp v Union des consommateurs, 2007 SCC 34 [Dell]; Seidel v TELUS
Communications Inc, 2011 SCC 15.
26 Rogers Wireless Inc v Muroff, 2007 SCC 35 at para 11 (summarizing the doctrine established in Dell,
ibid).
27 See e.g. Sum Trade Corp v Agricom International Inc, 2018 BCCA 379 (where the Court held that
issues about the existence or validity of the arbitration agreement should be left to the arbitratorto be
determined). See also Greer v Babey, 2016 SKCA 45.
28 2020 SCC 16 [Uber SCC].
sector, it is important to tease out the implications of this recent Supreme Court decision. We
say more about that in due course. But first, the following provides an overview of the
Supreme Court's decision in Uber.
In 2017, Heller commenced a proposed class action on behalf of all drivers who have
worked on the Uber platform in Ontario since 2012. Heller sought a declaration that drivers
in Ontario are employees of Uber and are therefore entitled to benefits under the Employment
Standards Act, 2000.29 In response, Uber brought a motion to stay the class action
proceeding. According to Uber, Heller was bound by an arbitration clause in the Uber
Services Agreement, to which all drivers must agree before performing services on the Uber
platform. 30 That clause provides, among other things, that any dispute arising out of the
Services Agreement must be resolved through mediation and, if required, arbitration in the
Netherlands in accordance with the applicable Rules of the International Chamber of
Commerce (ICC).3 1
The motions judge upheld the arbitration clause and granted Uber's motion for a stay. 32
However, the Court of Appeal for Ontario reversed that decision and found the arbitration
clause void and unenforceable. In the Court of Appeal for Ontario's view, the arbitration
clause in the Uber Services Agreement was void because it contracts out of the ESA.
Moreover, the Court of Appeal found that the clause was unconscionable. Key to this latter
finding was the Court of Appeal's determination that the arbitration clause amounted to an
unfair bargain given the inequities in bargaining power between Heller and Uber.33 The
Supreme Court agreed with the Court of Appeal. 34 As a first matter of business, the Supreme
Court found that Ontario's domestic - rather than its international - arbitration legislation
applied to the case. 35 As a general rule, Ontario's Arbitration Act, 1991 requires courts to
stay judicial proceedings where there is an applicable arbitration agreement. 36 However, there
are exceptions to this rule, particularly where the arbitration agreement is invalid.3 7
The Supreme Court's analysis about the validity of the arbitration clause in this case
focused on the doctrine of unconscionability. 38 Uber contended that the test for
unconscionability should be stringent and proposed that four criteria be met in order to
invalidate the arbitration clause. In its view, the arbitration clause was not unconscionable
unless it could be shown that: (1) it resulted from "a grossly unfair and improvident
transaction"; (2) Heller did not receive "legal advice or other suitable advice"; (3) there was
"an overwhelming imbalance in bargaining power caused by [Heller's] ignorance of
business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness,
senility, or similar disability"; and (4) Uber "knowingly [took] advantage of this
vulnerability." 39 However, the Supreme Court rejected this test, stating that it "unduly
29 Ibid at para 1; Employment StandardsAct, 2000, SO 2000, c 41 [ESA].

30 Uber SCC, ibid at para 13.
31 Ibid atpara 8.
32 Ibid at paras 14-15.
3 Heller v Uber Technologies Inc, 2019 ONCA 1.
3 Uber SCC, supra note 28 at para 4.
36 SO 1991, c 17, s 7(1).
" Ibid, s 7(2).
38 Uber SCC, supra note 28 at paras 53-100.
39 Ibid atpara 80.
[narrowed] the [unconscionability] doctrine, making it more formalistic and less equity-
focused." 40
Instead, the Supreme Court adopted a two-part test for unconscionability that considers
whether the arbitration agreement is the result of a power imbalance between the parties and
whether it results in an improvident bargain. 41In its decision, the Supreme Court is clear that
inequities in bargaining power exist when a party is unable to adequately protect their
interests in the contracting process. In those circumstances, a party's ability to freely enter
into (or negotiate) a contract is impaired, permitting courts to provide relief from that bargain
on equitable grounds. Relief on the ground of unconscionability also requires that the
agreement lead to improvident results. According to the Supreme Court, "[a] bargain is
improvident if it unduly advantages the stronger party or unduly disadvantages the more
vulnerable." 42 Considerations about the improvidence of an agreement are measured at the
time the contract is formed and must be assessed contextually. The Supreme Court
summarized its analysis thus:
In essence, the question is whether the potential for undue advantage or disadvantage created by the
inequality of bargaining power has been realized. An undue advantage may only be evident when the terms
are read in light of the surrounding circumstances at the time of contract formation, such as market price, the
43
commercial setting or the positions of the parties.
While headlines of the Uber decision invalidating an arbitration clause no doubt caught
the attention of many in Canada's energy sector, given the prevalence of arbitration clauses
in most industry agreements (such as development and joint venture agreements,
transportation, processing, and storage agreements, and supply chain agreements), it is
important to place the Supreme Court's guidance above in the context of Uber's and Heller's
specific negotiation context. The Uber Services Agreement is drafted by Uber and appears
to be non-negotiable for the driver. The arbitration clause found in the Canadian version of
that agreement provides for ICC mediation and then ICC arbitration, both under the
respective ICC rules and to take place in the Netherlands. And, as noted by the Supreme
Court, commencement of an ICC proceeding requires each party to post a deposit of
$14,500.44 The context for commercially sophisticated energy company or energy supply
chain company negotiations are typically much more balanced than the Uber context, albeit
not necessary entirely equal. Industry parties typically have more parity in terms of
negotiating leverage and obtaining independent legal advice, especially in respect of the
financial cost of commencing an ICC mediation and arbitration, and doing so in the
Netherlands.
For energy companies, such as local distribution companies and other types of energy
retailers, that contract directly with end users and, in particular, individuals like Heller, where
there may be potential for more extreme inequities in bargaining power, then consideration
should turn to the nature and requirements of the applicable dispute resolution clause.
40 Ibid at para 82.

41 Ibid at para 65.
42 Ibid atpara74.
43 Ibid atpara 75.
44 Ibid atpara 10.
Companies should be particularly aware of provisions that render arbitration essentially

illusory by financial cost or procedural burdens, in contrast to local and accessible dispute
resolution forums. In these exceptional circumstances, disputes arising under the contract
will not be arbitrable, according to the Supreme Court's decision in Uber.
3. ACCOUNTING FOR THIRD PARTY INTERESTS
As with jurisdictional issues, Canadian courts are reluctant to interfere with international
commercial arbitral proceedings. When faced with disputes commenced in both arbitration
and litigation forums, Canadian courts will stay litigation proceedings and enforce arbitration
agreements. Nonetheless, complexities arise when disputes involve third parties. In such
circumstances courts must balance a swathe of competing interests, including contractual
autonomy, prejudice to third parties, procedural efficiency, and cost-effectiveness.
A recent decision of the Court of Queen's Bench of Alberta is illustrative of the

complexities that can arise in cross-border disputes in the energy sector. Toyota Tsusho
Wheatland-Inc. v. EncanaCorporationcentred around a series of agreements: a New Royalty
Conveyance Agreement (NRCA), a Royalty Agreement (RA), and a Royalty Extension
Agreement (REA). 45 The RA precluded the contracting parties from disposing of "all or any
portion of the Royalty, the Royalty Lands or any interest in the [RA] without 'the prior
consent in writing of the other Party."'4 6 The RA and the REA contained a dispute resolution
clause referring the parties to arbitration in the event a dispute. 47 However, a provision of the
RA also gave the Court of Queen's Bench the authority to grant an order for specific
performance of obligations under the RA. 48
In May 2014, Encana Corporation (Encana) began divesting its title to its royalty lands
to a wholly owned subsidiary, PraireSky Royalty Ltd. (PraireSky). Then from May to
September of that same year, Encana divested all of its interest in PraireSky through a series
of public offerings. 49 As a result of these transactions, Toyota Tsusho Wheatland Inc. (TTWI)
subsequently terminated the REA with Encana.
TTWI then proceeded to initiate court and arbitration proceedings in the fall of 2015. In
the Court of Queen's Bench of Alberta, TTWI made a series of claims, including one for
specific performance of the RA, against Encana and PraireSky. TTWI's arbitration claims
were only against Encana, as PraireSky was not a party to the arbitration agreements. Inthese
proceedings TTWI sought, among other things, a declaration that it had validly terminated
the REA with Encana.50 These actions launched a series of cross-applications between the
three parties. Encana sought a stay of the court proceedings in favour of all claims being
addressed through arbitration. PraireSky opposed this application and instead sought stay of
the arbitration in favour of common claims being determined through the court proceedings.
45 2016 ABQB 209 [Toyota].

46 Ibid at para 10.
48 Ibid at para 55.
Meanwhile, TTWI favoured continuation of parallel processes given the nature of the claims
and parties involved."
In addressing these applications, the Court carefully balanced a number of interests and
determined that both the arbitration and the litigation should proceed; although not without
some modificationto the claims and the parties. Onwhetherto stay court proceedings against
Encana, the Courtwas clear that its power to interfere with the arbitrationagreement between
TTWI and Encana was very limited under the ICAA (Alta)." The Court acknowledged that
disputes governed by this legislation must always be referred to arbitration, even where third
parties are involved.5 3 As a result, the Court found that TTWI's claims against Encana should
proceed to arbitration, as this is what the arbitration clause in the RA between those parties
contemplated. The only exception to this was TTWI's claim for specific performance, as the
RA between Encana and TTWI explicitly contemplated the Court's jurisdiction over such
claims.54 In keeping with a cohesive interpretation of the agreements, the Court held that it
was necessary for an arbitratorto first determine the scope of Encana's obligations under the
RA, and whether it was in breach of the RA, before TTWI could seek specific performance
of that agreement against Encana before the Court."
The Court then found that the litigation proceedings between TTWI and PraireSky should
go forward. In so finding, the Court acknowledged that it has jurisdiction to stay proceedings
in favour of a party pending the outcome of a related arbitration.56 Decisions about whether
to do this must consider a series of factors including: (1) whether the issues in the arbitration
and the court action are substantially similar; (2) whether continuance of the action would
result in an injustice for the defendant; and (3) whether a stay would cause an injustice to the
plaintiff." In this instance, the Court acknowledged that EnCana could be inconvenienced
if the proceedings between TTWI and Prairie Sky continued. The Court was aware that
continuation of the court process could lead to duplicative proceedings and inconsistent
results. Nonetheless, it found that TTWI and PrairieSky would suffer greater prejudice if the
action between them were stayed.58
The ruling in this case and the reasoning throughout this decision is illustrative of the
balancing exercise that courts will undertakewhen considering thirdparty interests as against
enforcement of an arbitration clause. Given the complexity of contractual relationships, as
well as continuous ebb and flow of acquisition and divestiture activities, which are typical
throughout the energy sector, there will most likely be the potential for third party interests
to arise in the event of an arbitration. Whether such potential third party interests are a
material concern or not, however, will of course depend upon the specific facts of each
transaction. Nonetheless, the Court's decision at least provides a framework of
considerations for parties to assess the potential impact of third party interests, even if little
can be done in advance to avoid them.

52 Supra note 24.
5 Toyota, supra note 45 at paras 43-50.
Ibid atpara 61.
56 Ibid at para 70, citing UCANUManufacturingCorp v Calgary (City), 2015 ABCA 22.
5 Toyota, ibid.
4. CONSOLIDATING ARBITRATIONS: BALANCING EFFICIENCY AND CONSENT
The prospect of dispute settlement with multiple parties in multiple forums raises
efficiency concerns. This is especially true in the energy sector, where exploration and
development projects may engage a host of different contractual arrangements with a variety
of parties. Businesses may find themselves party to a series of disputes (all related to the
same project) in different forums with different counterparties. In these circumstances, it is
understandable that a party might seek to consolidate proceedings. However, consolidation
poses challenges in the arbitration context. More particularly, it highlights the tenuous
balance that exists between efficiency and consent. This balance has been recently tested in
the context of international arbitrations in the Alberta courts. 59
The ICAA (Alta) permits the Court of Queen's Bench to consolidate arbitration
proceedings. 60 If the parties to one or more arbitrations have agreed to appoint a particular
arbitral tribunal, the Court must respect that choice. But, should the parties disagree on this
point, the Court may also appoint an arbitral tribunal to hear the dispute(s).6' In trying to
balance procedural efficiency with the consensual nature of arbitration, the provision
permitting the courts consolidation of arbitral proceedings in the ICAA (Alta) also reaffirms
disputing parties' rights to consolidate arbitral proceedings by agreement.62 Interpretation of
this provision has divided Alberta courts in recent years. More particularly, courts have
disagreed about whether this provision grants them the authority to consolidate arbitral
proceedings if some - not all - of the parties consent.
In one series of decisions, the Court of Queen's Bench of Alberta has ruled that
consolidation of arbitral proceedings under the ICAA (Alta) requires consent of the disputing
parties. In Western Canada Oil Sands Inc. v. Allianz Insurance Company of Canada, the
Court determined that it did not have authority to order consolidation of arbitral proceedings
unless all parties to the arbitration consented to consolidation. 63 The Court's power to
consolidate arbitral proceedings is delineated in section 8(1) of the ICAA (Alta), which
provides that such authority is triggered "on application of the parties" to more than one
arbitration. 64 In refusing to consolidate the arbitral proceedings in this case, the Court
emphasized that arbitration is a consent-based form of dispute settlement intended to
minimize court intrusions.65 It therefore held that "the term 'parties' as it appears in [section
8(1)] refers to all of the parties to the arbitration. It would ... amount to a perverse
interpretation and simply not make sense to accept that the plural, 'parties', is used to refer
to a single party." 66 Subsequent rulings on consolidation have followed this decision, with
59 For an interesting discussion of these developments, see Kevin E Barr & Theron W Davis, "Under
Construction: A Close Examination of Recent Construction Law Developments and Their Impact on
the Oil and Gas Industry" (2019) 57:2 Alta L Rev 411 at 456-60.
60 ICAA (Alta), supra note 24, s 8(1).
61 Ibid, s 8(2).
62 Ibid, s 8(3).
63 2004 ABQB 79 [Western CanadaOilsands].
64 ICAA (Alta), supra note 24, s 8(1).
65 Western CanadaOilsands, supra note 63 at paras 25-28.
66 Ibid atpara 24.
the Court indicating a reluctance to intervene in arbitration proceedings unless all parties
consent. 67
However, a competing line of decisions calls this reasoning into question. In Pricaspian
Development Corporation v. BG InternationalLtd., the Court of Queen's Bench went
through a detailed consideration of the interpretive aids that must be considered when
determining the meaning of section 8(1) of the ICAA (Alta). 68 After a thorough review of
those instruments, including the relevant UNCITRAL working group report, the Model Law,
and the InterpretationAct, the Court found that use of the term "parties" in section 8(1)
should not be interpreted to mean that the Court could only order consolidation of arbitral
proceedings where all parties consent. 69 In so finding, the Court considered section 8 as a
whole and stated:
[T]here are two subsections of the ICAA that deal with consolidation: 8(1) and 8(3). Section 8(1), the section
in question, is set out above. Section 8(3) provides that: "nothing in this section shall be construed as
preventing the parties to 2 or more arbitration proceedings from agreeing to consolidate those arbitration
proceedings and to take such steps as are necessary to effect that consolidation." There would be no reason
for these two separate subsections to exist if both dealt with an agreement between parties: one must
necessarily deal with disagreement: s 8(1); and the other with agreement: s 8(3).70
In the Court's view, any other interpretation of section 8(1) would result in legislative
incongruities and prevent aggrieved parties from accessing the Court for help when parties
abuse the arbitration process."
The Court of Appeal of Alberta subsequently relied on this decision in JapanCanadaOil

Sands Limited v. Toyo Engineering CanadaLtd.72 This case involved a series of contracts
and disputes in relation to the expansion and redevelopment of the Hangingstone oilsands
project in Northern Alberta. Numerous disputes arose over the course of the project. The
parties attempted to resolve their disputes over an 18-month period, but ultimately
commenced two arbitration proceedings. The first, a domestic arbitration, was commenced
by Toyo Engineering Canada Ltd (Toyo Canada) against Japan Canada Oils Sands Limited
(JACOS) on 18 July 2017 (the Domestic Arbitration). The second, an international
arbitration, was commenced by JACOS against both Toyo Canada and its parent company
Toyo Engineering Corporation (Toyo Japan) on 24 July 2017 (the International
Arbitration). 73 JACOS sought an order to have the two arbitrations consolidated, with the
domestic arbitration being consolidated into the international arbitration (namely, both
arbitrations proceeding as an international arbitration). 74
67 Alberta Motor Association Insurance Company v Aspen Insurance UK Limited, 2018 ABQB 207 at
paras 155-57, 165.
68 2016 ABQB 611.
69 Ibid at paras 64-73, 89; InterpretationAct, RSA 2000, c I-8.
70 Ibid at 84.
72 2018 ABQB 844 at paras 108-109 [Japan Oilsands].
In permitting consolidation of these arbitral proceedings, the Court rejected Toyo

Canada's contention that "arbitration proceedings" under the ICAA (Alta) should be
interpreted to mean only international arbitration proceedings, thereby preventing the Court
from consolidating domestic and international arbitrations. 5 On this point, the Court noted
the different wording of Alberta's domestic arbitration legislation and the ICAA (Alta).
Whereas the statute governing domestic arbitrations explicitly excludes from its scope
arbitrations commenced under the ICAA (Alta), the same limitation is not true for the ICAA
(Alta). In the Court's view, a narrow interpretation of the ICAA (Alta) would create a
statutory gap and so it found that it had jurisdiction to consolidate domestic and international
arbitrations under section 8(1) of Alberta's ICAA. 76
In exercising its jurisdiction, the Court considered a number of factors. In this case, the
Domestic Arbitration and International Arbitration were related. They involved related
parties, and there were similar questions of law and fact arising out of the same transaction.
In addition, the Court noted that JACOS and Toyo Canada had already anticipated the issue
of consolidation under the arbitration provisions of the EPC agreement. In the Court's view,
all of these factors indicated that consolidation of the arbitrations was efficient and just.7 7
The above divergence in case law may, at first, seem unsettling.78 Alberta courts seem
uncertain about how much weight the notion of consent should be given when considering
procedural matters, such as consolidation of arbitral proceedings. While this is one of the
many considerations that participants in the energy sector may consider when negotiating
their desired seat of arbitration, we do not expect it would be determinative in ruling out
Alberta. Rather, other factors, such as the location and availability of the parties, counsel,
witnesses, and experts, as well as the direct and indirect costs to arbitrate, will most likely
be more influential in making that decision. Moreover, if Alberta reforms the ICAA (Alta)
(as British Columbia and Ontario have done) to permit consolidation of arbitral proceedings
only through consent of all involved parties, then any uncertainties generated by the above
jurisprudence will have little impact on future arbitrations.79
B. DEVELOPMENTS IN THE US
1. ARBITRABILITY
The doctrine of competence-competence provides that the arbitrators have the power in
the first instance to decide whether the parties' dispute falls within the scope of their
arbitration agreement, that is, whether a certain dispute is arbitrable. The doctrine of
competence-competence, however, is not directly incorporated into the FederalArbitration
Act.80 As a result, the US does not handle the issue of competence-competence in the same

76 Ibid atpara 77.
79 Some may even characterize the rulinginJapanOilsands,supranote 72 as an"outlier" amongst a series
of decisions, the general trend of which is to avoid interference in arbitral proceedings: see e.g. Robert
JC Deane, CraigR Chiasson& Paige Burham, "Canada," online: <globalarbitrationreview.com/review/
the-arbitration-review-of-the-americas/2021/article/canada>.
79 ICAA (BC), supra note 22, s 27.01; ICAA (Ont), supra note 21, s 8.
80 FederalArbitrationAct, 9 USC §§ 1-16, 201-208, 301-307 [FAA].
manner as other jurisdictions. Because of this difference, care must be taken when drafting
an arbitration provision that may need to be enforced by the US courts.
Under the FAA and Supreme Court of the United States decisions, the question of who
decides arbitrability, the court or the arbitrators, is a question of contract.' Applying the
FAA, the Supreme Court has held that parties may agree to have an arbitrator decide not only
the merits of a particular dispute but also "'gateway' questions of 'arbitrability,' such as
whether the parties have agreed to arbitrate or whether their agreement covers a particular
controversy." 82 The reasoning is that an "agreement to arbitrate a gateway issue is simply an
additional, antecedent agreement the party seeking arbitration asks the federal court to
enforce, and the FAA operates on this additional arbitration agreement just as it does on any
other." 3
Importantly, however, the delegation of threshold arbitrability questions to the arbitrator

requires that the parties' agreement delegate this power by "'clea[r] and unmistakab[le]'
evidence."84 The court determines whether a valid arbitration agreement exists. However, if
avalid agreement exists, and if the agreement delegates the arbitrability issue to an arbitrator,
a court may not decide the arbitrability issue.
Virtually every major arbitral institutions' rules provide that the arbitrators have the
jurisdiction to determine their own jurisdiction, in other words, to determine the arbitrability
of the dispute. Because arbitral institution rules delegate the question of arbitrability to the
arbitrators, most US federal courts have held that an agreement to arbitrate pursuant to
institutional rules constitutes a clear and unmistakable delegation of the issue to the
arbitrators. The Supreme Court, however, has not directly decided the issue.
In Schein, Archer & White filed suit in the Federal District Court of Texas, alleging
violations of federal and state antitrust laws and seeking both monetary damages and
injunctive relief. The contract between the parties, provided in pertinent part that: "[a]ny
dispute arising under or related to this Agreement (except for actions seeking injunctive
relief...), shall be resolved by binding arbitration in accordance with the arbitration rules of
the American Arbitration Association [AAA].""
Schein, based on the FAA, requested that the District Court refer the antitrust suit to
arbitration, contending that the contract's express incorporation of the AAA's rules meant
that an arbitrator -not the court - had to decide whether the arbitration agreement applied
to the particular dispute. Archer & White objected, asserting that the dispute was not subject
to arbitration because the complaint sought injunctive relief, at least in part. Archer & White
further argued that in cases where a defendant's argument for arbitration is wholly
groundless, the district court is empowered to resolve the threshold question of arbitrability.
81 Henry Schein, Inc v Archer and White Sales Inc, 139 S Ct 524 (2019) at 1 [Schein].
82 Ibid at 4; Rent-A-Center, West, Inc vJackson, 561 US 63 (2010) [Rent-A-Center]; see also FirstOptions
of Chicago, Inc v Kaplan, 514 US 938 (1995) [FirstOptions].
83 Rent-A-Center, ibid at 70.
84 FirstOptions, supranote 82 at 939; see also Rent-A-Center, ibid at 69, n 1.
85 Schein, supra note 81 at 2.
Relying on Fifth Circuit precedent, the District Court agreed with Archer & White about
the existence of a "wholly groundless" exception, ruled that Schein's argument for arbitration
was wholly groundless, and denied Schein's motion to compel arbitration. The Fifth Circuit
affirmed the decision. Shein then filed a petition for writ of certiorari with the Supreme
Court.
The Supreme Court reversed the decision and remanded it back to the Fifth Circuit,
holding that the courts could not bypass the arbitrability issue by finding a claim wholly
groundless. In the face of a proper delegation of the issue of arbitrability, whether a claim
is groundless is for the arbitrators to decide:
We must interpret the [FAA] as written, and the [FAA] in turn requires that we interpret the contract as
written. When the parties' contract delegates the arbitrability question to an arbitrator, a court may not
override the contract. Inthose circumstances, a court possesses no powerto decide the arbitrability issue. That
is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute
86
is wholly groundless.
In remanding the case to the Fifth Circuit, the Supreme Court further stated:
We express no view about whetherthe contract at issue in this case in fact delegated the arbitrability question
to an arbitrator. The Court of Appeals did not decide that issue. Under our cases, courts "should not assume
that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did
so." FirstOptions, 514 U. S., at 944 (alterations omitted). On remand, the Court of Appeals may address that
87
issue in the first instance, as well as other arguments that Archer and White has properly preserved.
On remand, the Fifth Circuit found the carve-out language precluded arbitration, reasoning
that because the parties did not clearly and unmistakably delegate all questions of jurisdiction
to the arbitrators, the question of whether Archer & White's claims fell within the carve-out
was outside the scope of the agreement to arbitrate. Thus, whether the injunction claim was
arbitrable was a question for the court in the first instance.
Focusing on the fact that the provision carved out "actions seeking injunctive relief," not
"actions seeking only injunctive relief' or merely "claims for injunctive relief," the Court
also rejected Schein's argument that the money damages claims must be arbitrated.88
Shein filed a petition for writ of certiorari to the Supreme Court raising the question of
"[w]hether a provision in an arbitration agreement that exempts certain claims from
arbitration negates an otherwise clear and unmistakable delegation of questions of
arbitrability to an arbitrator." 9
Archer & White, in turn, filed a conditional cross-petition for writ of certiorari raising a
number of issues, including whether an arbitration agreement identifying a set of arbitration
rules to apply clearly and unmistakably delegates to the arbitrator disputes about whether the
86 Ibid at 5.
7 Ibid at 8.
88 Archer and White Sales, Inc v Henry Schein, Inc, 935 F(3d) 274 (5th Cir 2019) at 283.
89 Henry Schein Inc v Archer & White Sales, No 19-963 (2019) at I.
parties agreed to arbitrate in the first place. This conditional writ was supported by the
amicus brief of Professor George Bermann, a leading arbitrationpractitioner and the chief
reporter of the American Law Institute's Restatement of the US Law of International
Commercial and Investor-State Arbitration. In the amicus, Professor Bermann noted that
athough a majority of courts have found the incorporation of rules containing such a
provision to satisfy First Options' "clear and unmistakable" evidence test, the ALI's
Restatement of the U.S. Law of International Commercial and Investor-State Arbitrationhas
concluded, after extended debate, that these cases were incorrectly decided because
incorporation of such rules cannot be regarded as manifesting the "clear and unmistakable"
intention that First Options requires.90
On 15 June 2020, the Supreme Court granted the petition for writ of certiorari filed by
Shein and denied the cross-petition filed by Archer & White. 91
2. FORCING PARTIES TO ARBITRATE:

THE POWER OF NON-SIGNATORIES
Disputes involving non-signatories are inevitable inthe context of modern international business transactions
that typically involve complex webs of interwoven agreements, multilayered legal obligations and the
92
interposition of numerous, often related, corporate and other entities.
This past year, the international arbitration community watched the case of GE Energy
Power ConversionsFranceSAS v. Outokumpu Stainless USA, LLC with great interest.93 At
issue was whether a non-signatory to an arbitration agreement can rely on the state-law
doctrine of equitable estoppel to compel arbitration of an international dispute. On 1 June
2020, the Supreme Court held that the New York Convention does not conflict with the
enforcement of arbitrationagreements by non-signatories under the domestic law equitable
estoppel doctrines. 94
The genesis of the dispute was the alleged failure of motors supplied by GE Energy
Conversions France SAS (GE Energy). ThyssenKrupp Stainless USA, LLC (ThyssenKrupp)
entered into three separate agreements with F.L. Industries, Inc. (F.L. Industries) for the
construction of cold rolling mills. Each contract contained an identical arbitration clause
(Contracts). The Contracts defined the terms "Seller" and "Parties"to include subcontractors.
After executing the Contracts, F.L. Industries entered into a subcontractor agreement with
GE Energy, whereby GE Energy agreed to design, manufacture, and supply the motors for
the cold rolling mills. Thereafter, Outokumpu Stainless USA, LLC (Outokumpu) acquired
ownership of the ThyssenKrupp plant.
90 Ibid (Brief of Amicus Curiae Professor George A Bermann in Support of the Respondent at 25).
91 For a summary of the proceedings, see "No 19-963," online: <www.supremecourt.gov/search.aspx?
filename=/docket/docketfiles/html/public/19-963.html>.
92 James M Hosking, "Non-Signatories and International Arbitration in the United States: the Quest for
Consent" (2004) 20 Arb Intl 289 at 289.
93 GE EnergyPower Conversion FranceSASv Otokumpu Stainless USA, LLC, 140 S Ct 1637 (2020) [GE
Energy].
94 Ibid at 3.
Outokumpu filed a state court lawsuit against GE Energy alleging failure to supply the
motors. GE Energy removed the case to federal court pursuant to FAA §205 and moved to
dismiss the lawsuit and compel arbitration. The District Court granted GE Energy's motions
and denied Outokumpu's motion to remand. The District Court reasoned that while the New
York Convention requires some writing to render an arbitration agreement enforceable, the
requirement was met because the terms "Seller" and "Parties" were defined to include
subcontractors. 95
The Eleventh Circuit reversed the decision, interpreting the New York Convention to
include a "requirement that the parties actually [signed] an agreement to arbitrate their
disputes in order to compel arbitration."96 Because GE Energy was not a signatory, the Court
held the requirement was not satisfied. The Court further held that GE Energy, as a non-
signatory, could not rely on state-law equitable estoppel doctrine to enforce the arbitration
agreement because the doctrine of equitable estoppel conflicts with the New York
Convention's signatory requirement.97
Applying familiar tools of treaty interpretation, the US Supreme Court held that the New
York Convention does not conflict with the enforcement of arbitration agreements by non-
signatories under domestic-law estoppel doctrines. 98 In reaching this conclusion, the Supreme
Court noted that Chapter 1 of the FAA permits courts to apply state-law doctrines related to
the enforcement of arbitrationagreements and that Chapter 2 states that "Chapter 1 applies
to actions and proceedings brought under this chapter to the extent that [Chapter 1] is not in
conflict with this chapter or the Convention."99
The Supreme Court found nothing in the text of the New York Convention that could be
read to prohibit the application of domestic equitable estoppel doctrines. Infact, the Supreme
Court observed that provisions of Article II of the New York Convention contemplate the use
of domestic doctrines to fill gaps in the New York Convention.
The Supreme Court also considered the negotiation and drafting history of the New York
Convention stating that" [n]othing in the drafting history suggests thatthe Convention sought
to prevent contracting states from applying domestic law that permits nonsignatories to
enforce arbitrationagreements in additional circumstances."' Similarly, the Supreme Court
found that post-ratification understanding of the New York Convention by other contracting
states to the New York Convention, "indicates that the New York Convention does not
prohibit the application of domestic law addressing the enforcement of arbitration
agreements." 10
The case has now been remanded to the Eleventh Circuit to determine whether GE Energy
can enforce the arbitrationclauses under the principles of equitable estoppel and which law
9s Outokumpu Stainless USA LLC v Converteam SAS, 2017 WL 401951 (SD Ala 2017).
96 Outokumpu Stainless USA, LLC v Converteam SAS, 902 F (3d) 1316 at 1326 (11th Cir 2018) [emphasis
omitted].
97 Ibid at 1327.
98 GE Energy, supra note 93.
99 FAA, supra note 80, §208.
100 GE Energy, supra note 93.
101 Ibid.
governs that determination. Thus, while non-signatories can attempt to enforce arbitration
agreements, whether that attempt will be successful will be based on the facts and the state-
law doctrines relied upon.
3. OBTAINING EVIDENCE FROM ABROAD

VIA U.S.C. SECTION 1782
In cross-border commercial disputes, the taking of evidence abroad may be crucial to the
fair resolution of the dispute. A US federal statute, 28 U.S.C. § 1782, in some instances, may
allow parties to proceed to an arbitration seated outside the US to petition a US federal court
to obtain evidence located in the US.1 2
Section 1782 permits courts to order a person "to give ... testimony ... or to produce a
document ... for use in a proceeding in a foreign or international tribunal.", 0 3 The federal
courts, however, are divided on whether a private, commercial arbitration is a "foreign
tribunal" for purposes of § 1782.
Prior to 2004, § 1782 was rarely used. In fact, in the 40-year period from 1964 to 2004,
the courts decided only 94 applications for discovery under U.S.C. section 1782 (Part
11.B).104 But the Supreme Court's decision inIntel Corp. v. A dvancedMicroDevices, Inc.," 5
coupled with the continuing growth of international commerce, created a valuable
international dispute resolution tool that parties have employed with frequent success.
Section 1782 is facile, with its true complexity turning, in large part, on the definition of
"tribunal" and a split among courts on application of that term.
At issue in-Intelwas Advanced Micro Devices' (AMD) request for a court order directing
Intel to produce documents relating to an action brought in Alabama (Alabama Documents).
AMD had filed an antitrust complaint with the Directorate-General for Competition of the
European Commission (European Commission). AMD sought the Alabama Documents in
aid of the antitrust complaint before the European Commission. Among the questions the
Supreme Court was called upon to address in Intel was whether the documents AMD sought
were "for use in a foreign or international tribunal." 06 The Supreme Court had little difficulty
in concluding that the European Commission, to the extent it acts as a first-instance decision
maker, fell with the ambit of § 1782.
Relying on that section's legislative history, the Supreme Court observed that in 1958,
when the Rules Commission was established, Congress "instructed the Rules Commission
to recommend procedural revisions 'for the rendering of assistance to foreign courts and
quasi-judicial agencies." 0 7 The Supreme Court, quoting from scholarly commentary by
102 Supra note 1.

103 Ibid.
104 RogerP Alford, "Ancillary Discovery to Prove Denial of Justice" (2012) 53:2012 Symposium Issue Va
J Intl L 127 at 155, n149 ("Based on a Westlaw search of cases from 1964, when the statute was
amended, to 2004, when Intel was decided, there [were] 94 reported cases addressing Section 1782
requests in forty years").
105 542 US 241 (2004) [Intel].
106 Ibid at 242.
107 Ibid at 257-58 [emphasis omitted].
Hans Smit, further stated in dicta, that "[t]he term 'tribunal' ... includes investigating
magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as
conventional civil, commercial, criminal, and administrative courts." 08 The inclusion of the
words "arbitraltribunals" in the Smit definition of "tribunals"is the genesis of the division
among the courts of the US as to whether § 1782's use extends to private international
arbitration.
Before the Supreme Court decidedIntel, the Second Circuit in NationalBroadcastingCo.

Inc. v. Bear Stearns & Co., Inc. held that § 1782 does not provide a vehicle for obtaining
discovery in a private international arbitration.109 The Fifth Circuit inRepublic ofKazakhstan
v. Biedermann Int'l, reached a similar conclusion." Following Intel, the Fifth Circuit
revisited the issue in an unpublished per curium opinion, El Paso Corporation v. La
Comision Ejecutiva Hidroelectrica del Rio Lempa,"' holding that nothing in the Intel
decision affected the analysis of the Biedermann court. In reaching this conclusion, the Fifth
Circuit remarked that the Supreme Court never considered the question of whether private
arbitral tribunals fell within the statute:
The question of whether a private international arbitrationtribunal also qualifies as a "tribunal"under § 1782
was not before the Court. The only mention of arbitrationin the Intel opinion is in a quote in a parenthetical
from a law review article by Hans Smit. That quote states that "the term 'tribunal' ... includes investigating
magistrates, administrative and arbitraltribunals, and quasi-judicial agencies, as well as conventional civil,
commercial, criminal, and administrative courts." Nothing in the context of the quote suggests that the Court
was adopting Smit's definition of "tribunal" in whole.112
Most recently, the Second Circuit inHanwei Guo v. Deutsche Bank Securities"3 was also
called upon to revisit its earlier National Broadcasting Co decision. The Second Circuit held
on 8 July 2020 that the Supreme Court holding inIntel did "not cast 'sufficient doubt' on the
reasoning or holding of NBC."" 4
Thus the Second and Fifth Circuits align, holding that § 1782 cannot be used in aid of
private international arbitration.
Not all federal appellate courts agreed. In 2019, the Sixth Circuit took a contrary view in
Abdul Latif Jameel Transp. Co. v. FedEx Corp., finding that "tribunal"included a private
arbitraltribunal. "' To reach this decision, the Sixth Circuit relied on "several reputable legal
dictionaries"" 6 and criticized the pre-Intel decisions as "turn[ing] to legislative history too
early in the interpretation process.""7 The Sixth Circuit further noted that even if it were to
108 Ibid at 258.

109 165 F(3d) 184 (2nd Cir 1999) [National Broadcasting Co].
"0 168 F(3d) 880 (5th Cir 1999) [Biedermann].
"1 341 Fed Appx 31 (5th Cir 2009).
112 Ibid at 34 [footnotes omitted].
113 2020 US App LEXIS 21219 [Hanwei Guo].
114 Ibid at 14.
115 939 F(3d) 710 (6th Cir 2019) [Abdul].
116 Ibid at 719.
"7 Ibid at 726.
consider the legislative history, "what the statements make clear is Congress's intent to
expand § 1782(a)'s applicability."" 8
Similarly, in March 2020, in Servotronics, Inc. v. Boeing Company,19 the Fourth Circuit
joined the Sixth Circuit in holding that a tribunal established pursuant to the rules of the
Chartered Institute of Arbitrators (CIArb) constituted a "tribunal" within the meaning of §
1782. The Court reasoned that the current version of the statute manifested Congressional
intent to provide "U.S. assistance in resolving disputes before not only foreign courts but
before all foreign and international tribunals."20 The Court additionally compared the FAA
with the United Kingdom's ArbitrationAct, 1996, observing arbitration in both the US and
UK is a regulated process with judicial supervision.1 2
'
Most recently, on 13 April 2020, a Delaware district judge in In re Storag Etzel Gmbh
concluded that private arbitration tribunals do not fall within the scope of § 1782.122 The
Court acknowledged the word "tribunal" was ambiguous and resolved that ambiguity by
focusing on authority relied upon in Intel:
The 1964 amendment that added "tribunal" to § 1782 (a) was drafted at Congress's request by the
Commission on International Rules of Judicial Procedure (Rules Commission). Congress created the Rules
Commission in 1958 "to recommend procedural revisions 'for the rendering of assistance to foreign courts
and quasi-judicialagencies."' Intel, 542 U.S. at 257-58 (quoting§ 2, 72 Stat. 1743) (emphasis added by
Supreme Court). Thus, it is reasonable to conclude that Congress understood when it adopted the Rules
Commission's revisions to § 1782(a), see id. at 248, that those revisions extended only to courts and
23
government agencies, not to private arbitral bodies.1
Given the wide divergence of court decisions, it is inevitable that the US Supreme Court
will be called upon to answer definitively whether the word "tribunal" includes a private
arbitration tribunal, thereby obviating the inherent inequities applicants face. Until that time,
the threshold viability of a § 1782 application will continue to be wholly dependent upon the
court in which the application is filed. Because a § 1782 application must be filed in the
district court of a district where a person "resides or is found," 24 if a witness or evidence is
us Ibid at 728 [emphasis in original].

119 954 F(3d) 209 (4th Cir 2020) [Servotronics].
120 Ibid at 213 [emphasis in original].
121 Following the Court's ruling, intervenor-appellee Rolls-Royce PLC filed a motion to stay issuance of
the mandate pending the filing of a petition for writ of certiorari which was denied on 22 April 2020.
Although a petition for writ of certiorari was due 28 June 2020, none was filed; ArbitrationAct 1996
(UK).
122 2020 US Dist LEXIS 63940 (Del Dist Ct 2020). Court records indicate an appeal has been filed in the
Third Circuit.
123 Ibid at 6.
124 Supra note 1. There are four threshold requirements: (1) the request must be made "by a foreign or
international tribunal," orby "any interested person" and an "interested person" need not be a litigant;
(2) the request must seek evidence, whether it be the "testimony or statement" of a person or the
production of"a document or other thing"; (3) the evidence must be "for use in a proceeding in a foreign
or international tribunal"; and (4) the person from whom discovery is sought must reside or be found
in the district of the district court ruling on the application for assistance. In addition, there are five
discretion factors to consider even if the four threshold requirements are met, to wit: (1) Is the person
from whom discovery sought a participant in the foreign proceeding?; (2) Considering the nature and
character of the foreign proceeding, isjudicial assistance appropriate?; (3) Will the foreign government,
court or agency be receptive to US federal-courtjudicial assistance?; (4) Is the discovery request aveiled
attempt to avoid foreign evidence gathering restrictions or other policies?; and (5) Is the request is
unduly intrusive and burdensome?: Intel, supra note 105.
located in a district where a court has interpreted the word "tribunal"to include private
arbitration, a §1782 application may be granted. In short, § 1782 can be a powerful discovery
tool allowing parties in foreign arbitralproceedings to obtain evidence located in the US that
may not otherwise be obtainable under local laws.
III. DEVELOPMENTS IN INTERNATIONAL INVESTMENT ARBITRATION:

NAFTA CHAPTER 11 TO CUSMA CHAPTER 14
Thus far, this article has focused on developments in the Canada and the US that impact
private international arbitrations and energy sector users of that form of dispute settlement.
Still, it is important to remember that energy sector participants investing globally also often
have access to arbitrationunder investment treaties.1 This form of arbitrationis both similar
to, and distinct from, private international commercial arbitration.126 Investor-state arbitration
permits foreign investors to sue governments for damages caused as a result of government
measures that violate substantive protections in an investment treaty (for example,
expropriation, fair and equitable treatment, and non-discrimination obligations). 27 Until
recently, the relevant investment treaty governing these types of claims as between US and
Canada was NAFTA Chapter 11.121
With its signing on 20 November 2018, and its entry into force on 1 July 2020, the
CUSMA marks the beginning of a new chapter in North American global economic
governance.1 29 Some have even called it a "state-of-the-art" instrument that will having
lasting beneficial impacts for the North American economy. Whether CUSMA will live up
to this designation is debatable. What seems readily apparent is that CUSMA provides fewer
avenues for foreign investors in Canada and the US to pursue treaty violation claims against
host state governments than did NAFTA.
Recall that CUSMA's predecessor agreement, NAFTA, came into force in 1994. Largely
influenced by the treaty practice of the US,1 30 NAFTA's investment chapter included
prohibitions against unlawful expropriation and obligations of non-discrimination. 3' NAFTA
Chapter 11 also included a investor-state dispute settlement mechanism as a means by which
125 Not all states enter into investment treaties (e.g. Brazil) and some have withdrawn from the Convention
on the Settlement ofInvestment Disputes between States and Nationals of other States, 18 March 1965,
575 UNTS 159 (entered into force 14 October 1966) (e.g. Bolivia, Ecuador, Venezuela).
126 Many refer to investment treaty arbitrationas a hybrid form of dispute settlement: see e.g. Jack
J Coe,
Jr, "Taking Stock of NAFTA Chapter 11 in Its Tenth Year: An Interim Sketch of Selected, Themes,
Issues, and Methods" (2003) 36:4 Vand J Transnat'l L 1381 at 1389-91; Todd Weiler, "Balancing
Human Rights and Investor Protection: A New Approach for a Different Legal Order" (2004) 27:2
Boston College Intl & Comp L Rev 429 at 430-31; William W Park, "The Specificity of International
Arbitration: The Case for FAA Reform" (2003) 36:4 Vand J Transnat'l L 1241 at 1299-301. See also
Bernardo M Cremades & David JA Cairns, "The Brave New World of Global Arbitration" (2002) 3:2
J World Investment 173 at 183 (referringto investment treaty arbitrationas "a hybrid between private
arbitration and inter-State arbitration").
127 For a discussion, see Elizabeth Whitsitt & Nigel Bankes, "The Evolution of International Investment
Law and Its Application to the Energy Sector" (2013) 51:2 Alta L Rev 207.
128 NAFTA, supra note 2, ch 11.
129 CUSMA, supra note 3.
130 For an overview of NAFTA Chapter 11, including background and commentary on its provisions see
Andrea K Bjorklund, "NAFTA Chapter 11" in Chester Brown, ed, Commentaries on Selected Model
Investment Treaties (Oxford: Oxford University Press, 2013) 465.
"31 See NAFTA, supra note 2, arts 1102 (National Treatment), 1103 (Most-Favoured-Nation Treatment),
1104 (Standard of Treatment), 1105 (Minimum Standard of Treatment) and 1110 (Expropriation and
Compensation).
to enforce states parties' investment commitments.1 32 NAFTA ushered in a new era of

investment treaty practice in which treaty protections and their enforcement mechanisms
were part of the regulatory framework that operated between developed states. For example,
the investment protections housed in NAFTA Chapter 11 protected a Canadian investor and
its investment operating in the US (and vice versa). This presented a new dynamic in the
inter-state regulation of foreign investment, which had historically operated to solidify
enforceable commitments to protect a developed state investor doing business in a
developing host state economy.1 33
With substantive protections that were broadly and ambiguously constructed, foreign
investors had the opportunity to challenge complex regulatory schemes in both Canada and
the US (and Mexico) with the very real possibility that the goal of investment protection
would override other considerations. The full weight of this possibility was not understood
at the time NAFTA came into force. In fact, all the evidence suggests that the NAFTA parties
paid little attention to the regulation of investment as NAFTA was, first and foremost, a trade
agreement that aimed liberalize substantial portions of the North American economy. 3 4 In
contrast to its quiet beginnings, the interpretation and application of NAFTA Chapter 11 has
been controversial, with critics broadly contending that arbitral tribunals have consistently
favoured investor interests at the expense of regulatory autonomy.13 5
Review of CUSMA's investment chapter (Chapter 14) suggests thatthe treaty parties were
cognizant of these criticisms when constructing the new investment regime that will operate
in North America for the foreseeable future. As in NAFTA Chapter 11, CUSMA Chapter 14
outlines a series of investor protections including obligations of non-discrimination,
guarantees of a minimum standard of treatment, and a duty not to expropriate.136 However,
the extent to which investors can enforce these protections is either limited as in the case of
US-Mexico, or completely eliminated as in the case of Canada-US.
Investment arbitration is, to some degree, available to US investors in Mexico and

Mexican investors in the US.137 However, availability of investor-state arbitration is
circumscribed by investor class (namely, the industry sector in which the investment is
made). Under CUSMA Chapter 14, investors in the oil and natural gas, power generation,
132 Ibid, art 1115. The constitutionality of NAFTA Chapter 11 tribunals under the Constitution Act, 1867
(UK), 30 & 31 Vict, c 3, s 96, reprinted in RSC 1985, Appendix II, No 5 and the Canadian Charterof
Rights andFreedoms, ss 7, 15, Part I of the Constitution Act, 1982, being Schedule B to the CanadaAct
1982 (UK), 1982, c 11 was unsuccessfully challenged in 2006: see Council of Canadians v Canada
(Attorney General) (2006), 277 DLR (4th) 527 (Ont CA).
133 Fora similarview, see Jirgen Kurtz, The WTO and InternationalInvestment Law: Converging Systems
(Cambridge, UK: Cambridge University Press, 2016) at 62.
134 See generally Maxwell A Cameron & Brian W Tomlin, The Making of NAFTA: How the Deal Was
Done (Ithaca: Cornell University Press, 2000).
135 See e.g. Ari Afilalo, "Meaning, Ambiguity and Legitimacy: Judicial (Re-)Construction of NAFTA
Chapter 11" (2005) 25:2 Nw J Intl L & Bus 279; Ari Afilalo, "Towards a Common Law of International
Investment: How NAFTA Chapter 11 Panels Should Solve Their Legitimacy Crisis" (2004) 17:1 Geo
Intl Envtl L Rev 51; Charles H Brower, II, "Structure, Legitimacy, and NAFTA's Investment Chapter"
(2003) 36:1 Vand J Transn'l L 37; Jeffery Atik, "Repenser NAFTA Chapter 11: A Catalogue of
Legitimacy Critiques" (2003) 3 Asper Rev Intl Bus & Trade L 215.
136 CUSMA, supra note 3, arts 14.4-14.6, 14.8.
137 Ibid at Annex 14-D. Investor-state arbitration remains as between Canada and Mexico under the
Comprehensive and Progressive Trans-Pacific Partnership, 8 March 2018 (entered into force 30
December2018), online: <www.international.gc.ca/trade-commerce/trade-agreements-accords-commer
ciaux/agr-acc/cptpp-ptpgp/index.aspx?lang=eng>.
telecommunications, and transportation sectors, who have entered into a "covered

government contract," may initiate arbitrationclaims for violations of CUSMA 's investment
treaty protections.138 If an investor does not meet these criteria, it may only pursue investor-
state arbitrationfor certain treaty violations. For example, non-discrimination claims may be
subject to arbitration as long as those claims to do not relate to the "establishment or
acquisition of an investment."1 39 Moreover, an investor in this class can only initiate
arbitration on the basis of direct - rather than indirect - expropriation claims. The effect
of these limitations is to significantly curtail many of the substantive investment protections
available to investors under NAFTA Chapter 11. Some of the most often invoked protections
(such as fair and equitable treatment and indirect expropriation) will no longer be the subject
of investment treaty arbitration under CUSMA. 14
Even where investment treaty arbitration is available, CUSMA Chapter 14 introduces a

series of procedural restrictions that give priority to the domestic courts within the US and
Mexico. Under NAFTA, investors could elect whether to pursue their claims in local courts
of the host state or whether to pursue those claims by way of arbitration. In the latter case,
investors were required to waive their rights to seek remedies in local courts. 141 In contrast,
CUSMA requires investors to first pursue their claims in the national courts of the US or
Mexico. They can only commence investor-state arbitration after two and half years (30
months) have elapsed from initiation of those court proceedings or if a final decision has
been rendered in the court of last resort.1 42 Direct recourse to arbitration is only permitted
where dispute settlement in national courts would be "obviously futile."1 43
In contrast to the above classifications and restrictions imposed on US and Mexican

investors, CUSMA Chapter 14 essentially eliminates investor-state dispute settlement for
Canadian investors operating inthe US and vice versa.1 4 4 Instead, investors from Canada and
the US are required to submit their disputes to local courts or rely on an arbitrationprovision
in an investment contract with the foreign state. Only for the next three years, Canadian and
US investors may rely on the legacy claims provision in CUSMA, which permits certain time
limited resolution of investor-state disputes through arbitration. 145 Specifically, only claims
arising withinthree years of the termination of NAFTA and in relationto investments existing
at the time of CUSMA's entry into force constitute legacy claims under CUSMA.146
Elimination of investor-state arbitrationin the context of Canada-US investment relations

is a significant shift for Canada and US investors. Broadly speaking, this development
signals discomfort (on one or both sides) with authority being granted to an international
dispute settlement mechanism, the legitimacy of which has come under increasing criticism
138 CUSMA, ibid, art 14-E(2)(b)(i)(A).

139 Ibid, art 14.D3(1)(a)(i)(A).
140 Investors are also precluded from initiating arbitration on the basis of claims for violation of the
minimum standardoftreatment, full protectionand security, the impositionofperformance requirements
or claims related to money transfers (compare CUSMA, supra note 3, art 14.D.3(1) withNAFTA, supra
note 2, arts 1105-106, 1109).
141 NAFTA, ibid, art 1121.
142 CUSMA, supra note 3, arts 14.D.5(1)(a)-(b).
43 Ibid, art 14.D.5(1)(b), n 25. See also art 14.D.1 which restricts investor-state arbitrationif investors are
owned or controlled by state considered to be a non-market economy.
144 Ibid, ch 14.
145 Ibid at Annex 14-C.
146 Ibid, arts 14.C.3-14.C.6.
through the years. It may also signal discord between Canada and the US about the type of
dispute settlement mechanism each would like to see developed in the current international
investment law regime, with a failure to reach consensus resulting in a turn to the domestic
courts of each jurisdiction. On this point, it is important to note that Canada has supported
recent reform initiatives that would see investor-state arbitration transformed into something
more akin to a court-like process in its recent regional agreements with the European
Union.1 47 This development is important because Canada's position on reform runs counter
to current views in the US regarding the settlement of investment treaty disputes - a reality
which may inform the outcome we see from CUSMA.
Whatever factors may have contributed to the elimination of investment treaty arbitration
as between Canada and the US, the fact remains that this development limits the strategic
options Canadian and US investors have to pursue investment treaty claims against
governments of the US and Canada, respectively. In the approximately 25 years that NAFTA
Chapter 11 was in force, 85 Chapter 11 claims were filed, with Canada being a respondent
in almost half (41) of those claims. 48 The US was a respondent in 21 claims.' 49 Of those 62
claims brought against Canada or the US, only eight claims (approximately 12 percent) were
brought by claimants in the energy sector. 5 0 When we consider these numbers, one could
fairly question whether energy sector investors on either side of the 49th parallel will even
notice the absence of an investor-state dispute settlement mechanism in CUSMA.
Nonetheless, the absence of investor-state arbitration in CUSMA does eliminate a strategic

option for Canadian and US investors that may have value beyond the actual arbitration. For
example, on 6 January 2016, TransCanada Corp. (now TC Energy) filed a Chapter 11 claim
against the US, based on the Obama administration's denial of a presidential permit for the
Keystone XL pipeline project. "i' That type of claim would not be available to TC Energy in
the event that a Biden administration follows through on its commitment to stop Keystone
XL unless the legacy claims provisions in CUSMA apply.
IV. CONCLUSION
The above discussion has outlined a series of developments in Canada and the US that
affect private international arbitrations. As a broad proposition, it seems fair to say that both
Canada and the US are arbitration friendly jurisdictions. Efforts in Canada to harmonize and
modernize legislation governing international commercial arbitrations evinces a continued
commitment to promotion of arbitration as an alternative means of dispute settlement in
cross-border disputes. In addition, the jurisprudential developments outlined above highlight
147 Comprehensive and Economic TradeAgreement between Canadaand the European Union, 30 October
2016 (entered into force 21 September2017), online: <www.international.gc.ca/trade-commerce/trade-
agreements-accords-commerciaux/agr-acc/ceta-ae cg/index.aspx?lang=eng&_ga=2.87726360.147
9904287.1605218056-1798666015.1605218056>.
148 Scott Sinclair, "Canada's Track Record Under NAFTA Chapter 11: North American Investor-State
Disputes to January 2018" at 46, online: Canadian Centre for Policy Alternatives <www.policy
alternatives.ca/sites/default/files/uploads/publications/National%200ffice/2018/01/NAFTA%20Disp
ute%20Table%2OReport%/o202018.pdf>.
149 Ibid.
1 Ibid.
'51 TransCanadaCorporationand TransCanadaPipelinesLimitedv The United StatesofAmerica, ICSID
Case No. ARB/16/21, "Notice of Intent to Submit a Claim to Arbitration under Chapter II of NAFTA,"
online: <www.italaw.com/sites/default/files/case-documents/ITA%20LAW%207030.pdf>.
the deferential posture Canadian courts typically have toward arbitralproceedings. Canadian
courts respect an arbitraltribunal's authority to determine its own jurisdiction and will only
interfere with that authority in exceptional circumstances (such as, unconscionability as was
seen in Uber). Where third party interests may be affected by arbitration, Canadian courts
have demonstrated a willingness to engage in a balancing exercise that respects the rights of
parties to an arbitration agreement as well as those who may have claims outside of that
agreement (Toyota). Even where there is some discord about whether to consolidate arbitral
proceedings, despite the absence of unanimous consent of the parties, the reasoning of
Canadian courts demonstrates a concern about balancing respect for the contractual
agreement of the parties to arbitrate with the interests of justice and procedural efficiency
(Japan Oilsands).
Review of recent jurisprudence in the US reveals a concern for underlying themes

(including consent, competence-competence, and third party interests) similar to those
informing Canadian courts. The manner in which these themes present themselves is,
however, distinct. In contrast to Canada, where the authority of arbitrators to determine their
own jurisdiction is outlined in legislation, in the US, issues of competence-competence are
determined by agreement between parties. This distinction has led courts in each jurisdiction
to address a different set of questions. Thus, in the US, we see jurisprudence that centres on
what the parties agreed to in their arbitration clause and whether reference to arbitral rules
in such a clause is a clear and explicit indication that an arbitral panel has competence-
competence (Schein). However, in Canada, we see jurisprudence question the legality of the
arbitration clause as a way of challenging an arbitral tribunal'sjurisdiction (Uber). While
different, the underlying concern addressed by the courts is the same - that is, the
consensual nature of arbitration as a form of dispute settlement. Similar concerns about
consent permeate the decisions of US courts in their ongoing debate about whether non-
signatories can force resolution of a dispute through arbitration (GE Energy). Finally we see
US courts -through consideration of §1789 - wrestling with questions that fundamentally
address the fair resolution of disputes in other jurisdictions, including international
commercial arbitrations (for example, Intel, NationalBroadcastingCo, Hanwei Gou, Abdul,
Servotronics).
Regarding recent developments in Canada-US international investment arbitration, the

replacement of NAFTA by CUSMA is most significant. Inparticular, while CUSMA continues
to provide for investor protections (obligations of non-discrimination, guarantees of a
minimum standard of treatment, and a duty not to expropriate), the elimination of a dispute
resolution mechanism for a Canadian or US investor to enforce those protections against the
US or Canadian government, as the case may be, is arguably a loss. Even though Canadian
and US energy sector investors only initiated eight Chapter 11 claims underNAFTA, CUSMA
eliminates that strategic option to the detriment of investors.
All of the foregoing developments are relevant to energy sector participants to the extent
that they help clarify how to manage their contractual arrangements and the arbitration
clauses therein, as well as their available strategic options. Moreover, many of the above
cases shed light on the strategies that parties to a dispute may employ in order to protect their
interests.

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DISPUTE RESOLUTION IN THE ENERGY SECTOR:

ANN RYAN ROBERTSON* AND ELIZABETH WHITSITT**

This article examines developments in international commercial arbitration and investment

I. INTRODUCTION ............................................. 315

II. CANADIAN AND US DEVELOPMENTS

1. LEGISLATION AND RENEWED EFFORTS TO HARMONIZE

One of the most significant nationwide developments in the field of international

28 USC § 1782 (2016).

In March 2014, the ULCC's Working Group on ArbitrationLegislation (Working Group)

"4 Ibid atparas 16-22.

Despite these differences, movements within Canada to modernize and harmonize

2. EXCEPTIONAL JURISDICTIONAL CHALLENGES:

Canadian courts typically defer to arbitrators to clarify the jurisdictional parameters in

29 Ibid at para 1; Employment StandardsAct, 2000, SO 2000, c 41 [ESA].

40 Ibid at para 82.

Companies should be particularly aware of provisions that render arbitration essentially

3. ACCOUNTING FOR THIRD PARTY INTERESTS

A recent decision of the Court of Queen's Bench of Alberta is illustrative of the

45 2016 ABQB 209 [Toyota].

51 Ibid at paras 17-19.

4. CONSOLIDATING ARBITRATIONS: BALANCING EFFICIENCY AND CONSENT

The Court of Appeal of Alberta subsequently relied on this decision in JapanCanadaOil

In permitting consolidation of these arbitral proceedings, the Court rejected Toyo

7 Ibid at paras 63-64.

Importantly, however, the delegation of threshold arbitrability questions to the arbitrator

2. FORCING PARTIES TO ARBITRATE:

3. OBTAINING EVIDENCE FROM ABROAD

102 Supra note 1.

Before the Supreme Court decidedIntel, the Second Circuit in NationalBroadcastingCo.

108 Ibid at 258.

us Ibid at 728 [emphasis in original].

III. DEVELOPMENTS IN INTERNATIONAL INVESTMENT ARBITRATION:

to enforce states parties' investment commitments.1 32 NAFTA ushered in a new era of

Investment arbitration is, to some degree, available to US investors in Mexico and

telecommunications, and transportation sectors, who have entered into a "covered

Even where investment treaty arbitration is available, CUSMA Chapter 14 introduces a

In contrast to the above classifications and restrictions imposed on US and Mexican

Elimination of investor-state arbitrationin the context of Canada-US investment relations

138 CUSMA, ibid, art 14-E(2)(b)(i)(A).

Nonetheless, the absence of investor-state arbitration in CUSMA does eliminate a strategic

Review of recent jurisprudence in the US reveals a concern for underlying themes

Regarding recent developments in Canada-US international investment arbitration, the

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