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In February 1990, ICAO entered into a contract with Tripal for the conception, construction and installation of an airport in Hanoi, Vietnam. The contract included an arbitration clause as well as a clause that preserved any immunity that might accrue to ICAO. Following the commencement of arbitral proceedings to resolve a dispute between the parties, ICAO raised its immunity to contest the arbitral tribunal's competence. Considering that the issue was one of mixed fact and law, the arbitral tribunal, in order to rule on the objection, decided to hear all evidence. ICAO then asked the Superior Court of Quebec to declare that it enjoyed an absolute immunity from judicial process of any kind. Tripal responded with its own motion for dismissal on the grounds that only the arbitral tribunal was competent at that stage of the proceedings.

The Superior Court granted the motion for dismissal of the declaratory motion, having decided that the arbitral tribunal alone was competent to decide the immunity issue. To this end, the Superior Court examined the conditions regulating judiciary intervention in the arbitral process (articles 16 and 34 MAL) and concluded that these were not met. The Superior Court refused to intervene on the basis of article 5 MAL. However, it noted that once the arbitral tribunal had declared itself competent, the Superior Court would be competent to review this decision in accordance with article 16(3) MAL, should a party so request.

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