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Case 30: MAL 35;36
Canada: Ontario Court, General Division (Feldman J.)
13 February 1992; appeal pending in the Ontario Court of Appeal
Robert E. Schreter v. Gasmac Inc.
Published in English: 7 Ontario Reports (3d), 608
Commented on by Tetley in [1993] Lloyd's Maritime and Commercial Law Quarterly, 238
For the purposes of MAL, an arbitral award does not merge in a judgment which confirms it. The court should not re-open the merits of an arbitral award where there has been no misconduct, simply on the grounds of ensuring conformity with public policy.
The agreement between the parties provided that the law of the state of Georgia, United States of America, would govern and that disputes arising out of the agreement would be determined by binding arbitration to take place in Atlanta. An arbitral award in favour of Schreter was subsequently confirmed by the Georgia court. Gasmac challenged the enforcement of the award in Ontario on a number of procedural grounds, all of which were rejected by the court. Gasmac claimed that the award had merged in the Georgia court judgment and could therefore only be enforced in Ontario as a foreign judgement. Gasmac also claimed that the acceleration of royalty payments for breach of contract was contrary to the public policy of Ontario.
The court found that article 35 MAL as enacted by the International Commercial
Arbitration Act, Revised Statutes of Ontario, 1990, c. 1.9 made recognition and
enforcement of arbitral awards mandatory. The court found no indication in article 35 or
36 that awards should be considered to merge in judgments which confirm them. The court
indicated that to make such a finding would "create a gaping hole in the scope of the
Act." The court determined that the facts did not warrant re-opening the arbitral
award on public policy grounds pursuant to article 36(1)(b)(ii) MAL. The court enforced
the arbitral award.
This case is cited in Case 117.
Additional Information published in later CLOUT issue (on "24 May 1994"):
Commented on by Chukwumerije in Canadian Business Law Journal, Vol. 22, 1993, 296
Additional Information published in later CLOUT issue (on "9 February 2000"):
Abstract published in English: [1995] Model Arbitration Law Quarterly Reports, Vol. 1, issue 3, 27
Text of the court decision published in English: [1995] Model Arbitration Law Quarterly Reports, Vol. 1, issue 3, 32
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