Arbitration

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Lawson Lundell has significant experience representing clients in domestic and international arbitration across a range of industries.

We regularly represent parties in both institutional and ad hoc proceedings. Our lawyers have experience with matters administered by major arbitral institutions including ICC, VanIAC, ADRIC, AAA, ICDR, SIAC, LCIA and HKIAC.

Our lawyers are thought leaders in the arbitration community. We are active members of key arbitration organisations, including the Chartered Institute of Arbitrators, the International Council for Commercial Arbitration, the IBA Arbitration Committee, the Western Canada Commercial Arbitration Society, the Vancouver International Arbitration Centre and the ICC Arbitration Committee.

Industry Experience

Energy

We have substantial experience in energy sector arbitration, where long-term, capital-intensive projects often require complex contractual structure and project financing. Our team advises on matters resulting from issues involving price review clauses, regulatory and policy shifts, geopolitical risk, and large-scale infrastructure challenges. We regularly act in disputes involving both state and private actors.

Mining

We represent mining clients in arbitration involving ownership disputes, joint ventures, permitting, expropriation, regulatory compliance, environmental liability, and Indigenous rights. We are also experienced in disputes related to stabilisation clauses and long-term agreements with host states, often triggered by legislative or political change.

Real Estate and Construction

We advise on arbitrations involving complex real estate and construction disputes, including those arising from procurement processes, cost overruns, liens, environmental liability, and contaminated sites. Our lawyers have appeared before all levels of court and major ADR forums across Canada. We provide advice and representation to international, national and local corporations as well as to individuals, financial institutions, tenants, commercial landlords, creditors, debtors and others.

Experience

Arbitrations

Successfully pursued a very complex force majeure claim for power plant owner facing approximately $170,000,000 in outage penalties. Case proceeded to a three-week hearing with over 30 witnesses (mainly experts), culminating in an award wholly in favour of client.
Represented a midstream facility owner in an arbitration with a co-owner over facility access and capacity, pipeline obligations and facility maintenance. Following a five-day hearing, achieved a successful result on the main issue of entitlement to facility capacity, worth almost $100 million dollars.
Represented the board of directors of a real estate development joint venture in an arbitration triggered by two joint venture partners, alleging misrepresentation and fraud by the board of directors. The two joint venture partners sought to unwind significant financial decisions made by the board, to challenge millions of dollars billed to the joint venture account and to obtain specific performance of an agreement that was not pursued. The case was settled on a confidential basis in the board of directors’ favour.
Represented the primary contractor in the construction of a water treatment plant in arbitration against the owner of the water treatment plant, a large mining company. Sought more than $55 million for unpaid amounts, contested changes, design deficiencies, and productivity losses and wrongful termination and defended against counterclaim seeking $75 million. Following the exchange of materials and position papers, the parties mediated and resolved the dispute on confidential basis.
Represented a power company in an arbitration against a counterparty to a power purchase agreement over entitlement to renewable energy credits worth over $100 million at the time of settlement. Settled the case shortly before the hearing in exchange for client retaining 45% more credits than initial offered from the counterparty prior to arbitration.
Counsel to a large energy company in a private arbitration dispute with its landlord over millions of dollars in disputed operating costs. The case settled on the eve of arbitration hearing with a significant payment to our client.
Represented an oil and gas producer and operator in an arbitration against a midstream company to enforce the terms of a gas handling agreement, claiming millions of dollars based on overcharges and rescission of the agreement. The case was settled on a confidential basis shortly before the hearing in exchange for a confidential settlement, including a new gas handling agreement in client’s favour.
Represented a real estate development company and individual directors and officers in arbitration condensing several court actions triggered by a group of early investors. The early investors challenged control in the management of the real estate development, distribution of profits, compensation paid to various directors and third parties and challenged percentage of ownership interests in the real estate development based on breach of contract, negligence, oppression, unjust enrichment. The real estate development company and directors counterclaimed millions of dollars in damages. Following exchange of materials and discovery, the case settled on a confidential basis without change of control in management of real estate joint venture.
Represented a power company in arbitration against a counterparty to a co-ownership and operation agreement relating to preferential rights to emission offset credits. Achieved negotiated resolution to dispute early in the arbitration proceedings following detailed exchange of positions.
Counsel to a pulp and paper mill in a private arbitration involving a claim for force majeure arising from Covid-19 measures. Case settled after a series of negotiations.
Represented a power plant owner in a dispute over the necessity and timing of generator inspections and repairs, including a significant construction delay claim. The case settled after the exchange of witness statements and expert reports.
Counsel to the owner of a power plant who successfully claimed force majeure due to corrosion in boilers, avoiding significant penalties. Case proceeded to a three-week hearing and award.

Arbitration-related litigation

Assisted Ontario counsel for two large pension plans in a successful court application to review a preliminary arbitral ruling pursuant to s. 17(9) of the Arbitration Act. (LAPP Corporation v Alberta, 2023 ABKB 566)
This case establishes that the prohibition on appeals from arbitration awards in the Alberta Power Purchase Arrangements supersedes the prohibition on contracting out of appeals on questions of law contained in s. 3 of the Arbitration Act. (ENMAX Energy Corporation v TransAlta Generation Partnership (2018), ABQB 142)
Counsel to a successful arbitration party that subsequently successfully opposed an application to set aside the arbitration award on the basis of procedural unfairness under s. 45 of Alberta Arbitration Act. (ENMAX Energy Corporation v TransAlta Generation Partnership 2019 ABQB 486 and 2020 ABCA 68 (permission to appeal granted) and 2022 ABCA 206 (appeal))
Represented an arbitration party in an originating application to set aside an arbitration award. (719491 Alberta Inc. v Canada Life Assurance Company 2021 ABQB 226 and 2021 ABCA 419)
This case, the first in a trilogy decided by the Alberta Court of Appeal about the scope and nature of arbitrations under the Alberta Power Purchase Arrangements, established that arbitrations of force majeure claims and statutory investigations by the Balancing Pool are separate processes, and denied the Balancing Pool the right to enter and inspect a power plant prior to formal commencement of an arbitration. (Balancing Pool v. TransAlta Corp. (2013), ABCA 409)
This case was the second in the trilogy noted above. The Court of Appeal removed an arbitrator purportedly appointed by the Balancing Pool, ruling that the Balancing Pool has no power to appoint an arbitrator under the Power Purchase Arrangements notwithstanding its status as a party to the arbitration. (TransAlta Generation Partnership v. Balancing Pool (2014), ABCA 294)
The final case in the Court of Appeal’s PPA trilogy confirmed that ordinary principles of res judcata apply to domestic commercial arbitration awards in Alberta, overturning a Court of Queen’s Bench decision that had determined otherwise. (Enmax Energy Corporation v TransAlta Generation Partnership (2015), ABCA 383, application for leave to appeal dismissed May 12, 2016, Docket No. 36846 (S.C.C.))
This case established that ordinary limitation periods apply to actions to enforce international arbitration awards that are subject to the New York Convention. Successful counsel in the Court of Appeal and the SCC. (Yugraneft Corporation v. Rexx Management Corporation (2008), 297 D.L.R. (4th) 168 (Alta. C.A.), aff'd 2010 SCC 19 (S.C.C.))
We acted for the Appellant in an appeal from a refusal to stay an action in favour of arbitration under the Alberta Arbitration Act. We applied for a reconsideration of the Court of Appeal’s decision in New Era, which permitted a plaintiff to escape a domestic arbitration agreement by naming, as defendants in a court action, non-parties to the arbitration agreement. (Lamb v. AlanRidge Homes Ltd., et al (2009), 76 C.P.C. (6th) 248 (Alta. C.A.), application for leave to appeal dismissed April 29, 2010, Docket No. 33477 (S.C.C.))
This case established the primacy of the Power Purchase Arrangements’ arbitration clauses over judicial review, finding that a challenge to a Balancing Pool refusal to confirm a High Impact Low Probability Event under the PPA must proceed by arbitration rather than by judicial review. (TransAlta Generation Partnership v. Balancing Pool (2012), ABQB 2)
Successful application for a stay of a court action in favour of an arbitration mandated under the Hydro Power Purchase Arrangement. (Balancing Pool v. TransAlta Utilities Corporation (2009), 18 Alta. L.R. (5th) 284 (Q.B.))
This case determined that the Balancing Pool has the right to arbitrate under a Power Purchase Arrangement independently of the Buyer. (TransAlta Generation Partnership v Balancing Pool (2018), ABQB 932, aff’d 2019 ABCA 318, application for leave to appeal dismissed February 20, 2020, Docket No. 38920 (S.C.C.))
Enforcement in Alberta of Letters Rogatory issued by California Court at the request of arbitrators hearing a AAA arbitration in California. (CSI Wireless LLC v. Harris Canada Inc. (2003), ABQB 610)
This case confirmed that a CCAA stay overrides an arbitration clause, and that as a result a CCAA judge can direct a trial of an issue instead of referring the parties to arbitration. (Luscar Ltd. v. Smoky River Coal Limited (1999), ABCA 62)