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Case 12: MAL 31; 34
Canada: Federal Court of Canada, Trial Division (Denault J.)
7 April 1988
D. Frampton & Co. Ltd. v. Sylvio Thibeault and Navigation Harvey & Frères Inc.
Original in English and French
With respect to an application to set aside an arbitral award, the powers of the court are limited to examining the award on the basis of the restrictive provisions of article 34 of the Model Law, as those provisions are reproduced in the Commercial Arbitration Code, S.R.C. 1985, c.C-34.6. The court cannot draw authority from article 34(4) MAL to refer the matter back to the arbitral tribunal and request that it consider the question of the applicable rate of interest where that question was not originally considered by the arbitrators.
Thibeault and Navigation Harvey requested the court to set aside an arbitral award where only two out of the three arbitrators had submitted their opinion. Where a defendant signed the charter-party which contained the arbitration clause, that defendant is personally involved in the charter-party since he signed it in his personal capacity. However, the court allowed the application of another defendant who had signed the charter-party while acting as president of his company. According to the court, the defendant is bound by the charter-party in his official capacity but not in his personal capacity. The decision of the arbitrator to involve that defendant personally was beyond the scope of the submission to arbitration in that it affected a third party who was not a party to the arbitration.
The application of Navigation Harvey to set aside the arbitral award was dismissed even
though only two arbitrators rendered the award. Article 31 MAL provides that "the
signatures of the majority of all members of the arbitral tribunal shall suffice, provided
that the reason for any omitted signature is stated". That reason was formally given
to the court by the president of the tribunal. The application for homologation of the
arbitral award was allowed.
Additional Information published in later CLOUT issue (on "4 November 1993"):
Appeal pending before the Federal Court of Appeal.
Additional Information published in later CLOUT issue (on "9 February 2000"):
Abstract published in English: [1995] Model Arbitration Law Quarterly Reports, Vol. 1, issue 1, 43
Text of the court decision published in English: [1995] Model Arbitration Law Quarterly Reports, Vol. 1, issue 1, 47
Text of the court decision published in French: [1995] Model Arbitration Law Quarterly Reports, Vol. 1, issue 1, 56
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