Delphi Petroleum Inc. v. Derin Shipping and Trading Ltd.
T-2047-93
Denault J.
3/12/93
8 pp.
Application for order granting interim measure of protection pursuant to Commercial Arbitration Code, art. 9 to allow evidence of Hollobon to be taken down before such person as Court deeming appropriate and to be tabled before Glen Bauer, arbitrator, New York City -- Bauer sole arbitrator of disputes between time chartered owner (Derin) and charterer (Delphi) -- Arbitration clause permitting either party to specify further disputes for determination until arbitrator finally closing hearings -- Final award issued June 15, 1993 -- Arbitrator holding impossible to determine responsibility for delay, but as onus of showing owner at fault for delay on charterer and burden not met, delay counting as laytime -- Delphi reserving right to raise further disputes -- Arbitrator holding having residuary power under original appointment to hear claims within reservation of rights made before issuance of award, provided arising out of charterparty -- As insufficient evidence to proceed, adjourning additional claims sine die -- Hollobon former employee of company managing vessel transporting cargo, and third party not involved in dispute -- Delphi seeking to secure his evidence regarding discussions, delays occurring upon discharge of cargo -- Application dismissed -- Recognition and enforcement of foreign arbitral award as "Canadian maritime law" within Federal Court Act, s. 2: Compania Maritima Villa Nova S.A. v. Northern Sales Co., [1992] 1 F.C. 550 (C.A.) -- There, as here, dispute arising from breach of charterparty agreement (maritime contract) and underlying claim in respect of demurrage (maritime claim) -- Commercial Arbitration Code, art. 9 providing not incompatible with arbitration agreement for party to request, from court, before or during arbitral proceedings interim measure of protection and for court to grant such measure -- Reference to Analytical Commentary, pursuant to Commercial Arbitration Act, s. 4(2) to interpret art. 9 -- Art. 27 relating to court assistance in taking evidence following request from arbitrator or party with approval of arbitrator -- Analytical Commentary providing involvement of arbitral tribunal would be conducive to preventing dilatory tactics of party -- Federal Court Rules 1026-1029 and 1040-1051 enacted to assist Court in exercising jurisdiction in relation to arbitral awards -- R. 1029, dealing with art. 27, authorizing issuance of subpoena ad testificandum -- Rule silent as to criteria to be applied when considering request -- Inquiry into reasons for request likely not necessary as request issuing from arbitral tribunal itself or with approval of arbitral tribunal -- Court's role merely to exercise compulsion power which arbitral tribunal may not have -- Same rationale not applicable where party requesting evidence not having approval of arbitrator -- Court must be wary of enabling "dilatory tactics of a party" -- Must seek to ensure measures conducive to making arbitration efficient and to securing expected results when requesting party not obtaining approval for request from arbitrator and seeking to secure evidence through application of art. 9 -- Where Rules silent as to appropriate practice or procedure to apply, R. 5 permitting Court to proceed by way of analogy to other provisions of Rules -- R. 466.3 providing authority to order pre-trial questioning of third parties in certain circumstances -- Appropriate as Hollobon third party to arbitration -- Criteria set out in R. 466.3 reflecting concerns regarding efficiency of arbitration process -- Hollobon's evidence not meeting criteria of R. 466.3(3)(a) (information on issue in action) as issue of delay already dealt with in final award -- Other criteria of R. 466.3(3) not met -- Commercial Arbitration Act, R.S.C., 1985 (2nd Supp.), c. 17, ss. 4(2)(b), 5 (as am. by R.S.C., 1985 (4th Supp.), c. 1, s. 9), 6, Schedule (being Commercial Arbitration Code), arts. 9, 27 -- Federal Court Rules, C.R.C., c. 663, RR. 5, 466.3 (as am. by SOR/90-846, s. 16), 1026-1029 (as am. by SOR/88-221, s. 12), 1040-1051 (as am. idem) -- Federal Court Act, R.S.C., 1985, c. F-7, s. 2.