Arbitration Clauses And Shareholder Disputes: Are "Fussy Distinctions" Undermining Efficient Dispute Resolution?

In 2007, the House of Lords declared that it was time to make a "fresh start" in the English approach to the scope and effect of arbitration clauses. In the Fiona Trust decision, Lord Hoffman held that "the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal". Lord Hope put the matter more bluntly, holding that a reader of a simple arbitration clause should not trouble himself with "fussy distinctions".¹

The recent Ontario Superior Court decision in Haas v. Gunasekaram & Feng,² refusing to enforce an arbitration clause in a shareholders' agreement, raises the issue of whether a "fresh start" is needed in Canada as well. If the decision is followed, the resulting uncertainty over the scope and enforceability of arbitration clauses in shareholders'