Why this case matters
"In the age of Zoom, is any forum more non conveniens than another?"
This was the opening line in the decision in
When granting the stay,
The underlying facts
The defendant,
The DAA contained an arbitration clause that required that disputes between the parties proceed by arbitration in the city where
A dispute arose and Kore commenced an action in
The defendants sought to stay that action in favour of arbitration.
The Court orders that the action be stayed in favour of arbitration
The Court determined that the test for staying a proceeding in the face of an arbitration clause is a relatively low one, and that the governing principle is deference to the mechanism provided for by the parties. The Court considered the test for whether a stay is appropriate, focusing on the fifth and final factor, namely whether there are grounds on which the Court should refuse to stay the action.
The plaintiff argued that
The plaintiff argued that the Court should consider convenience factors for the parties and issues of access to justice. The Court accepted that the
At the hearing of the motion,
In reaching this determination,
"Freshii Developments may have a miniature post office box or an entire office tower in
"It is by now an obvious point, but it bears repeating that a digital-based adjudicative system with a videoconference hearing is as distant and as nearby as the World Wide Web. With this in mind, the considerable legal learning that has gone into contests of competing forums over the years is now all but obsolete. Judges cannot say forum non conveniens we hardly knew you, but they can now say farewell to what was until recently a familiar doctrinal presence in the courthouse." [para. 31]
"And what is true for forum non conveniens is equally true for the access to justice approach to the arbitration question.
Is this goodbye to the doctrine of forum non conveniens considerations in stay motions?
There is no doubt that the global pandemic has accelerated the adoption and overall use of remote technologies in arbitrations, as well as in matters proceeding before the courts.
Witnesses are examined virtually across jurisdictional lines, materials are filed electronically from the comfort of practitioners' homes, and hearings take place on virtual platforms with the parties, witnesses, and arbitral tribunal all in different time zones.
The question remains whether these practices, which were borne out of necessity when travel and gathering restrictions were thrust upon us by the pandemic, will remain once those restrictions are lifted.
When those restrictions are gone, and parties are able to argue hearings in person, will the forum non conveniens-type analysis creep back into the stay proceeding analysis, or has the "Age of Zoom" irrevocably changed the test? As those restrictions are slowly but surely being lifted, we will soon find out.
To view the original article click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The International Arbitration Blog
McCarthy Tétrault LLP
Suite 5300,
ON M5K 1E6
Tel: 416362 1812
Fax: 416868 0673
E-mail: info@mccarthy.ca
URL: www.mccarthy.ca
© Mondaq Ltd, 2021 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source