Case number: 32
Article number: model arbitration law / 7; 8
Thessaurs issue:
Country of decision: Canada
Year of decision: 1992
Type of decision: Judicial decision

Case 32: MAL 7; 8
Canada: Ontario Court, General Division (Zelinski J.) 30 April 1992
Mind Star Toys Inc. v. Samsung Co. Ltd
. Published in English: 9 Ontario Reports (3d), 374

Agreements containing both an arbitration clause and a right to sue will still be subject to article 8 MAL, depending on the
particular agreement.

Mind Star was a licensee of a product which it sub-licensed to Samsung. The sub-licensing agreement contained an arbitration
clause and also a clause providing Mind Star with the right to sue should Samsung fail to perform any of its obligations. Mind
Star claimed that Samsung had fundamentally breached the agreement and that Mind Star was entitled to claim damages. The
parties agreed that the arbitration clause in the agreement qualified as an arbitration agreement pursuant to article 7 MAL as
enacted by the International Commercial Arbitration Act, Revised Statutes of Ontario, 1990, c.1.9.

The court concluded that the right to sue did not qualify the duty to arbitrate. Even disputes concerning the clause creating the
right to sue were subject to arbitration. The court found this "consistent with the requirement that the arbitrator will, in the first
instance, determine its own jurisdiction, and the scope of its authority." The arbitration clause was operative and as such article
8 MAL required that the parties be referred to arbitration.