Alberta Court Rejects Allegation That Arbitration Appeal Panel Decided Matter Based On Private Sense Of Justice

In SMART Technologies ULC v. Electroboard Solutions Pty Ltd. and Electroboard Solutions (NZ) Ltd. the Alberta Court of Queen's Bench was faced with an argument that an arbitral Appeal Tribunal had decided an appeal based not on clear errors of law or factual errors, but with the goal of "doing justice above all else".  The Appeal Tribunal was alleged to have acted on an ex aequo et bono basis (i.e. according to its own private sense of what was equitable good).

At issue in the case was Article 28(3) of the UNCITRAL Model Law on International Commercial Arbitration, which provides that an arbitral tribunal shall only decide a dispute on an ex aequo et bono basis "if the parties have expressly authorized it to do so."  Article 28 provides that an arbitral award may be set aside if it deals with a dispute not contemplated by the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration.