Case number: 36
Article number: model arbitration law / 8
Thessaurs issue:
Country of decision: Canada
Year of decision: 1993
Type of decision: Judicial decision

Case 36: MAL 8
Canada: Federal Court of Canada, Trial Division (Walsh J.) 19 January 1993
Nanisivik Mines Ltd. and Zinc Corporation of America v. F.C.R.S. Shipping Ltd., Canarctic Shipping Co. Ltd. et al.
Original in English and French
Unpublished

The mandatory nature of article 8 MAL does not remove the permissive jurisdiction of the Federal Court to grant stays of
proceedings pursuant to s. 50 of the Federal Court Act.

Nanisivik and Canarctic entered into a charter-party which required that all disputes of law and fact arising under it be referred
to arbitration. The ship sank. The plaintiffs sued in contract and tort. Canarctic argued that the court was required to grant a
stay of proceedings and refer the matter to arbitration pursuant to article 8 MAL which is enacted by the Commercial
Arbitration Act, Revised Statutes of Canada 1985, c. C-34.6. Nanisivik argued that a stay should not be granted against those
parties to the litigation who were not parties to the charter-party.

The court relied on its discretion pursuant to s. 50(1) of the Federal Court Act, Revised Statutes of Canada 1985, c.F-7
rather than on article 8 MAL and granted a stay of proceedings only against Canarctic. In so doing, the court relied on
previous Federal Court decisions which determined that article 8 MAL as invoked by an agreement to arbitrate does not affect
or impinge on the permissive jurisdiction of the Federal Court (see A/CN.9/SER.C/ABSTRACTS/1, cases 8 and 15).