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Case 36: MAL 8
Canada: Federal Court of Canada, Trial Division (Walsh J.)
19 January 1993
Nanisivik Mines Ltd. and Zinc Corporation of America v. F.C.R.S. Shipping Ltd., Canarctic Shipping Co. Ltd. et al.
Original in English and French
Unpublished
The mandatory nature of article 8 MAL does not remove the permissive jurisdiction of the Federal Court to grant stays of proceedings pursuant to s. 50 of the Federal Court Act.
Nanisivik and Canarctic entered into a charter-party which required that all disputes of law and fact arising under it be referred to arbitration. The ship sank. The plaintiffs sued in contract and tort. Canarctic argued that the court was required to grant a stay of proceedings and refer the matter to arbitration pursuant to article 8 MAL which is enacted by the Commercial Arbitration Act, Revised Statutes of Canada 1985, c. C-34.6. Nanisivik argued that a stay should not be granted against those parties to the litigation who were not parties to the charter-party.
The court relied on its discretion pursuant to s. 50(1) of the Federal Court Act,
Revised Statutes of Canada 1985, c.F-7 rather than on article 8 MAL and granted a stay of
proceedings only against Canarctic. In so doing, the court relied on previous Federal
Court decisions which determined that article 8 MAL as invoked by an agreement to
arbitrate does not affect or impinge on the permissive jurisdiction of the Federal Court
(see [...] , cases 8 ['8' appears to be a misprint for 9 ]
and 15).
The appeal of this case is reported as case 70.
Additional Information published in later CLOUT issue (on "9 February 2000"):
Abstract published in English: [1995] Model Arbitration Law Quarterly Reports, Vol. 1, issue 4, 79
Text of the court decision published in English: [1995] Model Arbitration Law Quarterly Reports, Vol. 1, issue 4, 84
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