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Case 17: MAL 8
Canada: British Columbia Court of Appeal (Carrothers, Southin and Wood, JJ.A.)
26 February 1990
Stancroft Trust Limited, Berry and Klausner v. Can-Asia Capital Company,
Limited, Mandarin Capital Corporation and Asiamerica Capital Limited
Published in English: 3 Western Weekly Reports 1990, 665
Under article 8(1) MAL, the fact that one defendant is entitled to an order staying the proceedings does not entitle other defendants to the benefit of the stay.
Mandarin and Asiamerica are British Columbia corporations. Can-Asia is a Hong Kong corporation. Stancroft is a United Kingdom company, Berry resides in London, England, and Klausner resides in Switzerland. The parties had concluded a number of agreements and security instruments. One instrument contained an arbitration clause requiring the resolution of disputes by the London Court of International Arbitration and according to British Columbia law. The plaintiffs sued the defendants for breach of contract. Can-Asia sought a stay of proceedings, citing the court's inherent jurisdiction and the Model Law as enacted by the International Commercial Arbitration Act, Statutes of British Columbia, 1986, c.14. The other defendants filed statements of defence after their applications to stay the proceedings.
On appeal, the British Columbia Court of Appeal ruled that Can-Asia was entitled to stay under section 8(1) of the Act, but the other defendants were not as they had filed statements of defence. The court upheld section 8(2) of the Act as representing no denial of access to the courts as those who were bound by the section had given up access voluntarily by agreeing to arbitration. As well, laws of a similar nature have existed for almost 300 years.
(Leave of appeal was denied by the Supreme Court of Canada.)
Additional Information published in later CLOUT issue (on "4 November 1993"):
Commented on by Paterson in Williamette Law Review, Vol. 27, 573.
Additional Information published in later CLOUT issue (on "9 February 2000"):
Abstract published in English: [1995] Model Arbitration Law Quarterly Reports, Vol. 1, issue 2, 1
Text of the court decision published in English: [1995] Model Arbitration Law Quarterly Reports, Vol. 1, issue 2, 4
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