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Case 386: MAL 8, 9, 17
Canada: Ontario Court of Justice (Sedgwick J.)
June 8, 1995.
ATM Compute GmbH v. DY 4 Systems, Inc.
Original in English
Published in English: [1995] O.J. No. 1678
The German applicant was the exclusive distributor in Germany of electronic printed circuits manufactured by the respondent, apparently an Ontario company. Following an alleged repudiation by the applicant, the respondent terminated the agreement. This agreement provided for arbitration before the Arbitration Court of the International Chamber of Commerce Zurich/Switzerland. Intending to bring the matter to arbitration, the distributor asked the Ontario court to refer the parties to arbitration pursuant to Article 8 of the Model Law and to grant interim measures of protection pursuant to Article 9.
The application was dismissed. While the Court held that the arbitration clause in the parties' agreement was one to which the Model Law would apply, there was no action pending in Ontario. There was also no evidence that the applicant served notice on the respondent of its wish to arbitrate the disputed matters but only of its intention to do so. The application under art. 8 was therefore premature. On the issue of interim measures, the Court noted that these could be ordered by the arbitral tribunal, in accordance with art. 17 and that these would be enforceable in Ontario under art. 9.
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