Export Development Canada v. Suncor Energy Inc.

Export Development Canada v. Suncor Energy Inc.

The Federal Court has statutory jurisdiction under the CAA/Code and FCA to appoint an arbitrator pursuant to the Policy; the subsidiaries are properly named and affected by the appointment and therefore remain parties to the appointment application but the Court must not decide arbitrator jurisdiction over them; selection criteria must be assessed holistically with highest priority given to qualifications and experience in Ontario/Canadian law and to independence and impartiality; applying those criteria the court appointed John Judge as sole arbitrator based on his substantial Ontario law experience and extensive arbitration track record.

Citation
2023 FC 1050
Parties
Applicant: Export Development Canada; Respondent: Suncor Energy Inc.; Respondent: Suncor Energy Oil (North Africa) GmbH; Respondent: Suncor Energy En Naga Limited; Respondent: Suncor Energy Libya Exploration B.V.; Respondent: Suncor Energy Ventures (North Africa) Limited
Court
Federal Court
Jurisdiction
Canada
Judgment Date
31 July 2023
Procedural Posture
Application to Appoint Arbitrator Under Arbitration Clause / Order and Reasons Following Appointment Hearing
Outcome
Application granted in part: Court appoints sole arbitrator and denies removal of subsidiaries as parties to the appointment proceeding
Legal Topics
Appointment of Arbitrator, Jurisdiction of Courts to Appoint Arbitrator, Competence Competence, Joinder of Subsidiaries, Oppression Remedy (cbca), Recovery/subrogation Rights, Conflict of Interest and Disclosures
Source Language
English
Arbitration Insurance Corporate Law International Commercial Arbitration Civil Procedure Appointment of Arbitrator Jurisdiction of Courts to Appoint Arbitrator Competence Competence +4 more

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Parties

Export Development Canada

Applicant

Suncor Energy Inc.

Respondent

Suncor Energy Oil (North Africa) GmbH

Respondent

Suncor Energy En Naga Limited

Respondent

Suncor Energy Libya Exploration B.V.

Respondent

Suncor Energy Ventures (North Africa) Limited

Respondent

Procedural Posture

Application to Appoint Arbitrator Under Arbitration Clause / Order and Reasons Following Appointment Hearing

Legal Issues

  1. 1 Does the Federal Court have jurisdiction to appoint a sole arbitrator under the Policy and applicable statutes?
  2. 2 Should the named subsidiaries be removed as parties to the appointment application or should the order be limited in scope?
  3. 3 Are there evidentiary defects in EDC's affidavits and cross-examinations affecting the appointment?

Ratio Decidendi

The Federal Court has statutory jurisdiction under the CAA/Code and FCA to appoint an arbitrator pursuant to the Policy; the subsidiaries are properly named and affected by the appointment and therefore remain parties to the appointment application but the Court must not decide arbitrator jurisdiction over them; selection criteria must be assessed holistically with highest priority given to qualifications and experience in Ontario/Canadian law and to independence and impartiality; applying those criteria the court appointed John Judge as sole arbitrator based on his substantial Ontario law experience and extensive arbitration track record.

Court Disposition

Application granted in part: Court appoints sole arbitrator and denies removal of subsidiaries as parties to the appointment proceeding

Orders

  • The Subsidiaries' request to be removed as parties to this application is denied.
  • John Judge is appointed as sole arbitrator for the Second Arbitration.