Overview
When parties agree to arbitrate, they expect both the process and the outcome to reflect their bargain. Certainty of process is one of the reasons that parties agree to arbitrate. In InFrontier AF LP v. Rahmani, 2026 ONCA 289, the Ontario Court of Appeal considered whether a foreign arbitral award should be enforced where the arbitration proceeded under a different institutional regime than the one specified in the parties’ agreement.[1]
The decision reinforces the United Nations Conference on International Commercial Arbitration’s pro-enforcement framework (the “Convention”) while clarifying how strictly courts will scrutinize deviations from agreed arbitral procedures particularly in the face of evolving institutional rules and legislative change. The Convention has the force of law in Ontario by virtue of the International Commercial Arbitration Act (ICAA).
The dispute centred on whether an arbitration conducted in the Dubai International Arbitration Centre (DIAC) complied with the parties’ agreement or was decided in contravention of their agreement and against public policy.
The parties’ agreement provided for arbitration to be held in the Dubai International Financial Centre Arbitration Institute (DIFC) under the rules governing the DIFC–London Court of International Arbitration regime (DIFC-LCIA Rules).
Following the parties’ agreement, there were institutional and legislative changes in Dubai, transferring the rights and obligations of the DIFC to the DIAC with a corresponding change to the governing rules. Because of this, the arbitration could not proceed in the DIFC but rather was dealt with in the DIAC under DIAC Rules.
Procedural History
After the respondent obtained an arbitral award in the DIAC of over $2.5 million USD against the appellant, it applied to the Ontario Superior Court of Justice for recognition and enforcement.[2]
The appellant resisted enforcement, arguing that: (1) the arbitration procedure did not comply with the parties’ agreement because the arbitration was conducted under the DIAC Rules rather than the DIFC-LCIA Rules; (2) he was unable to present his case, and; (3) recognition and enforcement of the award would violate Ontario public policy.[3]
The application judge rejected all three arguments, finding that the DIAC Rules were an amended version of the agreed DIFC-LCIA Rules and that the arbitration was procedurally fair. The award was recognized and enforced in Ontario. The appellant appealed that decision.[4]
Court Reasoning
The Court of Appeal upheld the application judge’s decision, emphasizing that the Convention requires courts to interpret the parties’ agreement to determine what procedural rules were agreed upon.[5]
Here, the agreement incorporated the DIFC-LCIA Rules, which expressly contemplated that future amended versions of those rules would apply. The appellant argued that the application judge wrongly applied the law of Dubai in reaching his conclusion. The OCA disagreed, finding that because the DIFC-LCIA Rules contemplated that they might be amended, it was appropriate for the application judge to consider Dubai law, to determine whether an amendment to the rules had occurred. Because the parties had agreed to an amended version of the Rules as were in place at the time their arbitration commenced, the application judge was entitled to take into account the law of the jurisdiction with authority over the institution that enacted the rules, to determine if an amendment had occurred. The Court found that the DIAC Rules constituted such an amended version and thus fell within the scope of the parties’ agreement.[6]
The application judge’s analysis focused on contractual interpretation thereby attracting deference, and no extricable legal error was identified.[7]
The Court also rejected the appellant’s fairness and public policy arguments, holding that there was no evidence he was prevented from presenting his case and that the high threshold for the public policy exception, requiring a fundamental affront to justice, was not met.
Implications and Future Considerations
This decision reinforces the strong pro-enforcement bias of the Convention and underscores the narrow scope of the grounds for resisting enforcement of arbitral awards in Ontario. It highlights that courts will take a flexible, contextual approach to interpreting arbitration agreements, particularly where institutional rules are incorporated by reference and subject to amendment.
The case also confirms that the law governing the arbitration may play an interpretive role in determining the content of the parties’ agreement, without displacing party autonomy.
Parties should be aware that agreeing to arbitration rules that permit future amendments may expose them to procedural frameworks that evolve over time, including through legislative intervention affecting arbitral institutions.
Going forward, parties seeking greater procedural certainty may wish to expressly limit the application of amended rules or specify a fixed version of governing arbitration procedures.
[1] InFrontier AF LP v. Rahmani, 2026 ONCA 289 [“InFrontier”].
[2] InFrontier at para. 3.
[3] InFrontier at para. 20.
[4] InFrontier at para. 24.
[5] InFrontier at para 35.
[6] InFrontier at para 43.
[7] InFrontier at para 50.
The author would like to thank Harry Scannell, Student-at-Law, for his assistance with this blog.