Case number: 68
Article number: model arbitration law / 9; 27
Thessaurs issue:
Country of decision: Canada
Year of decision: 1993
Type of decision: Judicial decision

Case 68: MAL 9; 27
Canada: Federal Court of Canada, Trial Division (Denault J.) 3 December 1993
Delphi Petroleum Inc. v. Derin Shipping and Training Ltd.
Original in English and French
Unpublished

The plaintiff, a charterer, had a dispute with the defendant, a shipowner, involving freight and demurrage costs. Pursuant to an
arbitration clause contained in the charterparty the matter was submitted to a single arbitrator in New York who issued a final
award.

The plaintiff, who was not satisfied with the award as far as the claim for demurrage costs was concerned, applied to the court
for an interim order in order to secure the evidence of a witness with regard to that claim and a number of additional claims for
unjust enrichment, quantum meruit and misrepresentation.

The court referred to the travaux pr‚paratoires of MAL (A/CN.9/264, article 9, paras. 1 and 4) pursuant to sections 4(2)(b),
5 and 6 of the International Commercial Arbitration Act and found that it had jurisdiction to grant an interim order pursuant to
article 9 MAL. The court noted that it had a mandate to render assistance in matters of evidence in arbitration but it should
avoid taking measures conducive to dilatory tactics of the parties (A/CN.9/264, article 27, paras. 5-6).

The court dismissed the plaintiff's application on the ground that it did not meet the test of rule 466.3(3)(a) of the Federal Rules
of Procedure that the witness whose testimony is sought "may have information on an issue in the action" since the issue of
demurrage had been decided upon by the arbitrator and the court was not satisfied that the evidence before it demonstrated
that the witness had any information on the other issues raised in the application.