Empresa Minera Los Quenuales S.A. v Vena Resources, 2015 ONSC 4408
This Ontario Superior Court case concerned an arbitral award obtained in Peru by Empresa Minera Los Quenuales S.A., a Peruvian subsidiary of Glencore plc, and attempts to have the award recognized and enforced in Ontario against Vena Resources Inc. and its subsidiaries. Vena's head office is in Toronto.
Ontario's International Commercial Arbitration Act incorporates Article 35 of the Model Law on International Commercial Law. Pursuant to Article 25, a Court must enforce an arbitral award upon receipt of a certified copy of the authenticated arbitration agreement and arbitral award. The Court has discretion to refuse enforcement if the party resisting enforcement can bring itself within Article 36, such as by demonstrating that the arbitral award may be set aside by a pending annulment proceeding.
In this case, Vena had commenced an annulment application in Peru, and the Ontario Court exercised its discretion to adjourn Empresa's application until the annulment decision is delivered. In doing so, the Court considered the three-part test set out in RJR-MacDonald v. Canada, [1994] 1 S.C.R. 311, and found that a modified version of the test applied to adjournment applications under Article 36. The party resisting the enforcement application must show that there is an issue to be tried and the court must consider the balance of convenience. As a condition of the adjournment, Vena was ordered to post security in the amount of $250,000.
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