March 31, 2021 Practice Points

Canadian Court Decides NY Convention’s Requirement Is Inclusive

The court held that the requirement of a written arbitration agreement includes emails and texts.

By Daniel Urbas

In Parrish & Heimbecker Ltd. v. TSM Winny AG Ltd., 2020 SKQB 348, Justice Richard W. Elson held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) mention of an “agreement in writing” in the definition of an agreement to arbitrate was “inclusive” and imposed no formal requirement that an “agreement in writing” needed to be signed.

Given the absence of text and email messages in 1958, when the New York Convention was created, I think it only logical for the Court to modernize these words and find that the reference to “telegrams” should include other similar forms of electronic communication, such as facsimile, text and email messages. 

Though applicant’s submissions referred to but produced no certified copies of the agreement to arbitrate or the award, Justice Elson adjourned the application for recognition and enforcement to allow applicant to file the certified copies. 

Daniel Urbas is an arbitrator and mediator at Urbas Arbitral in Montreal, Quebec, Canada.

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