Case number: 17
Article number: model arbitration law / 8
Thessaurs issue:
Country of decision: Canada
Year of decision: 1990
Type of decision: Judicial decision

Case 17: MAL 8
Canada: British Columbia Court of Appeal (Carrothers, Southin and Wood, JJ.A.) 26 February 1990
Stancroft Trust Limited, Berry and Klausner v. Can-Asia Capital Company, Limited, Mandarin Capital Corporation and
Asiamerica Capital Limited
Published in English: 3 Western Weekly Reports 1990, 665

Under article 8(1) MAL, the fact that one defendant is entitled to an order staying the proceedings does not entitle other
defendants to the benefit of the stay.

Mandarin and Asiamerica are British Columbia corporations. Can-Asia is a Hong Kong corporation. Stancroft is a United
Kingdom company, Berry resides in London, England, and Klausner resides in Switzerland. The parties had concluded a
number of agreements and security instruments. One instrument contained an arbitration clause requiring the resolution of
disputes by the London Court of International Arbitration and according to British Columbia law. The plaintiffs sued the
defendants for breach of contract. Can-Asia sought a stay of proceedings, citing the court's inherent jurisdiction and the Model
Law as enacted by the International Commercial Arbitration Act, Statutes of British Columbia, 1986, c.14. The other
defendants filed statements of defence after their applications to stay the proceedings.

On appeal, the British Columbia Court of Appeal ruled that Can-Asia was entitled to stay under section 8(1) of the Act, but
the other defendants were not as they had filed statements of defence. The court upheld section 8(2) of the Act as representing
no denial of access to the courts as those who were bound by the section had given up access voluntarily by agreeing to
arbitration. As well, laws of a similar nature have existed for almost 300 years.

(Leave of appeal was denied by the Supreme Court of Canada.)