Case number: 30
Article number: model arbitration law / 35; 36
Thessaurs issue:
Country of decision: Canada
Year of decision: 1992
Type of decision: Judicial decision

Case 30: MAL 35;36
Canada: Ontario Court, General Division (Feldman J.) 13 February 1992; appeal pending in the Ontario Court of Appeal
Robert E. Schreter v. Gasmac Inc.
Published in English: 7 Ontario Reports (3d), 608
Commented on by Tetley in [1993] Lloyd's Maritime and Commercial Law Quarterly, 238

For the purposes of MAL, an arbitral award does not merge in a judgment which confirms it. The court should not re-open the
merits of an arbitral award where there has been no misconduct, simply on the grounds of ensuring conformity with public
policy.

The agreement between the parties provided that the law of the state of Georgia, United States of America, would govern and
that disputes arising out of the agreement would be determined by binding arbitration to take place in Atlanta. An arbitral
award in favour of Schreter was subsequently confirmed by the Georgia court. Gasmac challenged the enforcement of the
award in Ontario on a number of procedural grounds, all of which were rejected by the court. Gasmac claimed that the award
had merged in the Georgia court judgment and could therefore only be enforced in Ontario as a foreign judgement. Gasmac
also claimed that the acceleration of royalty payments for breach of contract was contrary to the public policy of Ontario.

The court found that article 35 MAL as enacted by the International Commercial Arbitration Act, Revised Statutes of Ontario,
1990, c. 1.9 made recognition and enforcement of arbitral awards mandatory. The court found no indication in article 35 or 36
that awards should be considered to merge in judgments which confirm them. The court indicated that to make such a finding
would "create a gaping hole in the scope of the Act." The court determined that the facts did not warrant re-opening the
arbitral award on public policy grounds pursuant to article 36(1)(b)(ii) MAL. The court enforced the arbitral award.