Case number: 12
Article number: model arbitration law / 31; 34
Thessaurs issue:
Country of decision: Canada
Year of decision: 1988
Type of decision: Judicial decision

Case 12: MAL 31; 34
Canada: Federal Court of Canada, Trial Division (Denault J.) 7 April 1988
D. Frampton & Co. Ltd. v. Sylvio Thibeault and Navigation Harvey & Fr res Inc.
Original in English and French

With respect to an application to set aside an arbitral award, the powers of the court are limited to examining the award on the
basis of the restrictive provisions of article 34 of the Model Law, as those provisions are reproduced in the Commercial
Arbitration Code, S.R.C. 1985, c.C-34.6. The court cannot draw authority from article 34(4) MAL to refer the matter back
to the arbitral tribunal and request that it consider the question of the applicable rate of interest where that question was not
originally considered by the arbitrators.

Thibeault and Navigation Harvey requested the court to set aside an arbitral award where only two out of the three arbitrators
had submitted their opinion. Where a defendant signed the charter-party which contained the arbitration clause, that defendant
is personally involved in the charter-party since he signed it in his personal capacity. However, the court allowed the
application of another defendant who had signed the charter-party while acting as president of his company. According to the
court, the defendant is bound by the charter-party in his official capacity but not in his personal capacity. The decision of the
arbitrator to involve that defendant personally was beyond the scope of the submission to arbitration in that it affected a third
party who was not a party to the arbitration.

The application of Navigation Harvey to set aside the arbitral award was dismissed even though only two arbitrators rendered
the award. Article 31 MAL provides that "the signatures of the majority of all members of the arbitral tribunal shall suffice,
provided that the reason for any omitted signature is stated". That reason was formally given to the court by the president of
the tribunal. The application for homologation of the arbitral award was allowed.