'Whereas the jurisdiction of this Arbitral Tribunal is grounded on Article 161 of a contract between the Parties dated 21 January 1999;

Whereas during August and October 2002 [Respondent] and [Claimant] respectively initiated separate arbitration proceedings under this same arbitration agreement;

Whereas in December 2002 the two proceedings were consolidated by the ICC Court of International Arbitration [sic], and in April 2003 the present Arbitral Tribunal became fully constituted to consider the matter;

Whereas on 3 June 2003 Terms of Reference and a calendar for the initial phase of the proceedings were established;

Whereas [Claimant] then filed a Statement of Claim dated 20 June 2003 requesting an order for rescission and damages . . . wherein it alleged, among other things, that prior to signature on 20 September 2000 of an Amendment No. 3 to the "Sales Contract" dated 21 January 1999, [Respondent] had failed to disclose that it had decided to discontinue the manufacture and sale of the . . . equipment then being supplied to [Claimant] under the contract;

Whereas [Respondent] replied with an Answer dated 2 July 2003 and concurrently withdrew its countering claims against [Claimant] and submitted an Application to Dismiss [Claimant]'s claims as a matter of law (hereinafter "Application to Dismiss");

Whereas [Respondent] contended in the Application to Dismiss that under the applicable Canadian law a failure to disclose information during contract negotiations could not give rise to a cause of action for violation of a duty of care or a duty of good faith, and, in any event, the express terms of the contract excluded the other remedies sought by [Claimant];

Whereas [Claimant], under its own motion, thereafter filed a Reply dated 17 July 2003, and later, pursuant to directions from the Arbitral Tribunal, a Reply to the Application to Dismiss dated 4 August 2003;

Whereas [Claimant] contended in response to the Application to Dismiss that it should be rejected, at the least because facts presented in [Claimant]'s Statement of Claim disclose a cause of action for deceit;

Whereas [Respondent], under its own motion, then filed on 7 August 2003 a Rebuttal submission in which it contended that causes of action based on deceit or fraudulent misrepresentation were defectively presented and thus bound to fail, and in any event are foreclosed by the exclusionary clauses of the contract;

Whereas on 11 August 2003 the Parties presented oral argument on the Application to Dismiss; and

Following deliberation,

The Arbitral Tribunal has unanimously decided the question as follows:

1. The Application to Dismiss is denied.

2. The proceedings shall continue in accordance with further directions to be issued by the Arbitral Tribunal.

The costs of the Application to Dismiss are reserved in favour of Claimant. Considering the rarity of international arbitration proceedings addressing the topic of summary disposition of claims, the reasons for this decision are annexed to the present Order.'

'Annex to Procedural Order No. 1

I

The Application to Dismiss, it must be emphasized, is presented at the very outset of the proceedings, prior to any investigation by the Arbitral Tribunal of the facts of the matter.

In the absence of a procedural rule expressly contemplating an Application to Dismiss, Respondent suggests that the Arbitral Tribunal nonetheless has inherent authority to proceed as it deems appropriate in the circumstances. In response to a question from the Arbitral Tribunal, counsel for [Respondent] asserted that the Application to Dismiss is not based on any particular "model", but allowed that it could be compared with "summary judgment"2 and "strike out"3 procedures.

For its part, Claimant's opposition to the Application to Dismiss is not based on procedural grounds. Indeed, the Arbitral Tribunal notes that [Claimant] in October 2002 itself requested that the earlier Request for Arbitration submitted by [Respondent] be "struck out". While that request was not ultimately retained as part of these proceedings, due in essence to understandings contained in the Terms of Reference, the authority of the Arbitral Tribunal to dismiss claims in the context of summary proceedings is evidently accepted by both Parties. This threshold determination must nonetheless be qualified by certain considerations flowing from the nature of international arbitration proceedings.

First and foremost, it must be kept to mind that the arbitration law of the country where the arbitration takes place governs the arbitration itself. This general rule is expressly stated in Swiss arbitration law and is also repeated in the Terms of Reference.

The procedure for this international arbitration proceeding in Geneva, Switzerland is thus to be determined pursuant to the provisions of chapter 12 of the Swiss Private International Law Act ("PIL Act"). Article 182 PIL Act provides (in English translation):

1. The parties may, directly or by reference to arbitration rules, determine die arbitral procedure; they may also submit it to a procedural law of their choice.

2. Where the parties have not determined the procedure, the arbitral tribunal shall determine it to the extent necessary, either directly or by reference to a law or to arbitration rules.

3. Whatever procedure chosen, the arbitral tribunal shall ensure equal treatment of the parties and the right of the parties to be heard in an adversarial procedure.

The final sub-paragraph 3 of Article 182 PIL Act, stipulating the procedural right to be heard, provides an essential caveat of particular importance in the context of determining a proper procedure for the summary disposition of claims by an international arbitration tribunal sitting in Switzerland. In short, the contours of any such procedure must remain consistent with the contours of the right to be heard.

In respect to procedure, the Parties have by agreement determined the arbitral procedure by reference to the ICC Rules of Arbitration. Article 15 of the ICC Rules provides:

1. The proceedings before the Arbitral Tribunal shall be governed by these Rules and, where these Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration.

2. In all cases, the Arbitral Tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.

In point of fact, the remainder of the ICC Rules are silent in respect to the specific question of a procedure for the summary disposition of pleadings, issues or claims. It therefore falls to the Arbitral Tribunal to determine the pertinent procedure in accordance with Article 15 of the ICC Rules, subject as well to the mandatory procedural safeguards reflected in Article 182, sub-paragraph 3, of the PIL Act. Reference may thus be made to the procedural laws of relevant countries, including possibly Switzerland, as well as to any apposite international arbitration practice.

In this connection, it must also be recalled that international arbitrators do not have a lex fori in the manner of a national court judge. In particular, the international arbitrator sitting in Switzerland is not required to apply either Swiss civil procedure rules or Swiss conflict of law rules. In any event, Swiss civil procedure law (whether cantonal or federal) does not gain relevance on the mere basis that the seat of the arbitral tribunal is situated in Geneva.

In the present case, the Parties have specifically chosen to subject their contractual relationship to the laws of the Province of Alberta and the laws of Canada. In addition, both Parties operate in the context of common law jurisdictions (predominately at least), and the facts, contentions and natural expectations pertinent to their dispute relate to common law principles and practices.

In considering the issues presented by the Application to Dismiss, the Arbitral Tribunal has observed that the procedural rules developed within common law jurisdictions in relation to striking out and summary judgment derive essentially from practices originally developed by the common law courts of England and Wales in substitution for the old plea of demurrer. Thus, civil procedure rules found in Nigeria4 as well as in most Canadian provinces, including in particular Alberta5, resemble the traditional civil procedure rules enacted in England for these purposes.

Considering the general characteristics of the present case, including the agreed relevance of the laws of the Province of Alberta and of Canada, and with particular regard to [Respondent]'s contentions under Canadian law that [Claimant] asserts defective or non-existent causes of action, the Arbitral Tribunal shall proceed by way of analogy to make reference to Canadian practice and in particular to practice under Rule 129 of the Alberta Rules of Court.

ln conducting this analysis, the Arbitral Tribunal also considered the relevance of summary judgment, and determined that the standards for summary judgment, as these are stated in Rule 159 of the Alberta Rules of Court (i.e. "no merit" and "no genuine issue"), are simply unsuitable for the disposition of a case at the very outset of proceedings, before any investigation of the facts. The substance of the right to be heard would simply not be respected if summary judgment could be given straight off "the crack of the bat".

However, the right to be heard, while mandatory, is not absolute. For example, there would seem to be no reason to recognize a right to be heard on the merits of obviously impertinent questions, nor in the event of abuses of process or other excesses. At least in principle, therefore, circumstances may exist in which an arbitral tribunal might decide to strike out a case from its very outset, and properly do so without overstepping the bounds of the right to be heard. With this in mind, the exceptional device of striking out a case appears much better suited to the outset of proceedings than is summary judgment.

However, a strong dose of circumspection appears to be called for since, unlike the situation before national courts, international commercial arbitration tribunals are established on a case-by-case basis and their jurisdictional authority is basically founded on a contract to refer to binding arbitration any disputes coming within the scope of the agreement to arbitrate. In the context of commercial arbitration, therefore, there could only be very little room indeed for the procedure of striking out a case. Moreover, the Arbitral Tribunal is mindful that the present arbitration proceedings were initiated by Respondent at a time when Claimant, for its part, was pursuing in good faith the implementation of the pre-arbitration procedures also stipulated in Article 16 of the Parties' contract. [Respondent] having successfully headed off the pre-arbitration procedure by going straight to arbitration, it would be inequitable for the Arbitral Tribunal now to strike out the case and in this fashion cut short the arbitration proceedings as well. Counsel for [Respondent] did suggest that [Claimant] might still introduce a new arbitration case in such event, but in the view of the Arbitral Tribunal this rationale goes against the essential philosophy of international commercial arbitration practices favoring efficiency and finality by means of practical and flexible procedures tailored to the needs of individual cases.

In conclusion with respect to these introductory observations, the Tribunal also notes that the Alberta Supreme Court, Appellate Division determined in Cerny v. Canadian Industries Ltd et al., [1972] 30 D.L.R. (3d) 462, that cases interpreting the procedure under Rule 129 apply with equal force to an application made either under Rule 129 or under the inherent jurisdiction of a court.

II

A review of Canadian practice in respect to the striking out of pleadings can be started with the observation made by the Canadian Supreme Court in Hunt v. Carey, [1990] 2 S.C.R. 959, that in many Canadian provinces the rules of practice concerning the striking out of pleadings are similar and were all modelled to a large extent on rules of practice from England. The Court explained in this connection that, prior to the advent of the Supreme Court of Judicature Act, 1873 ( Eng.) 36 & 37 Vict., c. 66, and the Rules of the Supreme Court (enacted in 1883), it had been open to parties to proceedings before the Royal Courts of Justice to use a "demurrer" to challenge a statement of claim. Under the demurrer, a defendant could admit all the facts that the plaintiff s pleadings alleged and assert that these facts were not sufficient in law to sustain the plaintiff's case. However, by the 19th century a formal and technical practice had developed around demurrer and judges had become notoriously reluctant to provide definitive answers to the points of law raised under demurrers. As the Lord Chancellor ultimately explained in Metropolitan Bank, Ltd v. Pooley, [1881-85] All E.R. 949 (H.L.), demurrers came to be replaced in England by O. 25, r. 4 of the 1883 Rules of the Supreme Court.6

Commenting at the time on the relative merits of the new rule versus the old demurrers, Chitty J. observed in Republic of Peru v. Peruvian Guano Co. (1887), 36 Ch. D. 489: "Having regard to the terms of rule 4, and to the decisions on it, I think that this rule is more favourable to the pleading objected to than the old procedure by demurrer. Under the new rule the pleading will not be struck out unless it is demurrable and something worse than demurrable. If, notwithstanding defects in the pleading, which would have been fatal on a demurrer, the Court sees that a substantial case is presented the Court should, I think, decline to strike out that pleading; but when the pleading discloses a case which the Court is satisfied will not succeed, then it should strike it out and put a summary end to the litigation" (at p. 496).

The original rule 4 eventually came to be replaced in 1962 by O. 18, r. 197. In Drummond-Jackson v. British Medical Association, [1970] 1 All E.R. 1094 (C.A.), Lord Pearson observed in respect to rule 19: "Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases" (at pp. 1101-02). The "plain and obvious" standard was first stated by Lindley, M.R. in Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clark, Ltd, [1899] 1 Q.B. 8 (C.A.), at p. 91.

The Canadian Supreme Court thereupon concluded that "the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19:8 assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect . . . should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a)" (Hunt v. Carey, supra, at 980).

Subsequently, in Korte v. Deloitte, Haskins & Sells, [1993] 8 Alta. L.R. 337, the Alberta Court of Appeal confirmed in respect to Rule 129 of the Alberta Rules of Court that a statement of claim should not be struck out unless it is plain and obvious or beyond a reasonable doubt that the plaintiff cannot succeed. The court added that some generosity should be allowed in assessing whether the statement of claim discloses a cause of action, and that it is not always necessary to plead specific words or specific legal conclusions provided that the essence of the action is outlined in the pleadings.

In Plas-Tex Canada Ltd v. Dow Chemical of Canada Ltd, [1998] Alta. D.J. 685, Moore, C.J. of the Court of Queen's Bench in Alberta restated in summary form the various principles relating to striking out pleadings catalogued in detail the previous year by the Northwest Territories Court of Appeal in the case of Fullowka v. Whitford, [1997] 147 D.L.R. (4th) 532, leave to appeal to the Supreme Court of Canada denied (1997):

a. The expense and inconvenience of defending a complicated suit is not a sound ground to strike out a pleading, particularly if the plaintiff was seriously harmed;

b. The proposition that ambiguities in a pleading (other than admissions) are to be resolved against the pleader applies to construing pleadings at trial and even after trial, and not to a motion to strike out;

c. It is well settled that on a motion to strike out, the impugned pleading must be read generously. This is a corollary of the rule in "d" below and probably also a corollary of another well-settled rule, that a pleading will not be struck out if the flaws in it are capable of amendment;

d. The major rule is that a pleading will not be struck out for want of a cause of action unless the flaw is plain and obvious and beyond doubt. A case must be hopeless to be struck out and a court must use extreme caution on such a motion. Any suggestion that the pleading to be struck out should be read restrictively is incompatible with the "major rule";

e. That the plaintiff will have to make novel arguments is no ground to strike out;

f. It is elementary that a pleading is valid and suffices to raise a certain cause of action if it gives facts which create that cause of action. It need not name that or any cause of action or give a legal conclusion, and indeed it may name a different cause of action, or the wrong cause of action;

g. In the context of negligence claims, the courts should not strike out a claim over difficult or uncertain proximity or duty questions, nor over questions of remoteness of damage. It is well settled that a motion to strike is not the time to decide general, important, difficult or serious questions of law;

h. Though it is not enough for a pleading to plead a legal conclusion without the necessary facts, a pleading should not be struck out for want of particulars; and

i. The rule is permissive, and never forces the court to strike out.

III

For the purposes of the Application to Dismiss, Respondent accepts the facts alleged by Claimant in the Statement of Claim dated 20 June 2003.9

The facts thus alleged by [Claimant] may be summarized by the Arbitral Tribunal as follows:

a. The Claimant . . . is a limited liability company incorporated in Nigeria and it is in possession of the appropriate Licence for the provision of [equipment] within the south-eastern region of Nigeria.

b. The Respondent . . . is a wholly-owned Canadian subsidiary of [X], a company incorporated in the United States of America, and for some portion of the time period between 1996 and 2002 it conducted the business and functions of the . . . Unit of the . . . Division of [X].

c. In 1996, the Parties entered into an agreement for the provision of [equipment] in the locality of . . ., as a first step in an expansion programme designed to extend [services] over the whole of the south-eastern region of Nigeria. It was agreed between the Parties that [Respondent] equipment and technology would be used for the expansion programme, and it was the common understanding of both Parties that [Claimant] planned to implement the expansion programme in progressive stages.

d. In January 1999, the Parties executed a further "Sales Agreement" in respect to expansion of the [equipment], and this agreement was established as the basic instrument to regulate the phased provision of the [equipment] to be supplied and installed, subject to variation as to quantifies, prices and other variables.

e. Under the terms of the January 1999 Sales Agreement, [Respondent] agreed to provide a timely and cost effective:

(i) supply, delivery, installation and commissioning of [equipment]

(ii) spare parts

(iii) testing of the system and

(iv) ... Engineering Services

f. On 22 January 1999, the Parties executed an Amendment 1 for the supply of additional [Respondent] Equipment and Services.

g. On 3 August 1999, the Parties executed an Amendment 2 for the supply of additional [Respondent] Equipment and Services. However, Amendment 2 was not implemented but came to be subsumed in an Amendment 3 concluded the following year.

h. On 20 September 2000, the Parties executed an Amendment 3 for the supply of additional [Respondent] Equipment and Services.

i. Before the Parties executed Amendment 3, [Respondent] knew but did not disclose to [Claimant] that it no longer:

(i) was in a position to supply the [Claimant] expansion programme with [required equipment]

(ii) had the personnel, capability, engineering and research support system by which it could perform its obligations to install and commission the system in a timely manner

(iii) owned its manufacturing base

(iv) could support the promises, representations and undertakings in the January 1999 Sales Agreement and Amendment 3 thereto.

j. [Respondent] did not achieve commissioning by the contractual completion date of 3 August 2001, nor any subsequent date.

k. On 14 April 2002, [Claimant] learned that [Respondent], prior to signature of Amendment 3, had already decided to discontinue the manufacture of the Equipment, closed down its facility in [city], sold off the property, and effected a dispersal of the staff.

IV

Respondent's Application to Dismiss is grounded on two types of arguments. The first set asserts that the facts pleaded by [Claimant] in the Statement of Claim do not disclose valid causes of action (either because of a flaw in the pleading or because the law does not recognize a corresponding cause of action). The second set asserts that in any event the exclusionary clauses of the contract preclude the relief sought by [Claimant] (rescission and damages), and also that these contractual provisions may not be circumvented by asserting a cause of action sounding in tort rather than in contract.

The Arbitral Tribunal considers that the second set of arguments can be put aside without further evaluation at present since none pertain to possible grounds for striking out a pleading. Instead, they call for determinations on the merits of the claims or defenses, and while arguments of that nature could have their place in summary judgment proceedings, they do not come within the limited scope of a motion to strike. As determined above, it would be premature in the extreme to consider grounds for summary judgment at the present stage of the proceedings.

The crucial question for present purposes relates to the first set of arguments, concerning causes of action. In Alberta, a cause of action has been defined as "the fact or combination of facts which give rise to the right to sue" (Miller (Ed) Sales and Rentals v. Caterpillar Tractor Co. (1994), 151 A.R. 1 (Q.B.) at pp. 81-82). To date in these proceedings, a significant number of "causes of action" have been bandied about more or less accurately by one or the other Party, or both. These include so-called emerging causes of action derived from legal principles involving a duty to disclose, a duty of good faith, or duties of care in tort or in contract, as well as very classic actions concerning deceit, misrepresentation, and breach of contract.

As noted above at the end of Part II, a motion to strike pleadings is to be considered in light of a number of principles, and several of these relate directly to the notion of a cause of action. Thus, it is considered elementary that "a pleading is valid and suffices to raise a certain cause of action if it gives facts which create that cause of action" (Plan-Tex Canada Ltd v. Dow Chemical of Canada Ltd, supra).

Moreover, the same list of principles also confirms that it is not even required that the contested pleading give a legal conclusion or actually name any cause of action. Nor would the assertion of a different or wrong cause of action give grounds for the striking out of the pleading. Indeed, well-settled principles establish that the impugned pleading must be read generously, and will not be struck out if the alleged flaw may be corrected by amendment. Furthermore, the fact that the plaintiff could be forced to make novel arguments is no ground to strike out. As a general matter, a case must be hopeless to be struck out and extreme caution must be used on such a motion.

In essence, the major rule is that a pleading will not be struck out for want of a cause of action unless the flaw is "plain and obvious and beyond doubt" (Ibid.).

The Arbitral Tribunal thus considers that the Application to Dismiss must be denied.

First, it is sufficient for present purposes simply to note from the alleged facts that installation and commissioning of the [Respondent] equipment was not achieved by a completion date of 3 August 2001, nor any subsequent date (Claim, ¶ 15). A cause of action for breach of contract is thus clearly disclosed. In its Statement of Claim, [Claimant] requested an order for rescission of the agreement (Claim, ¶ 30) and asserted general damages in an amount of . . . (Claim, ¶ 29). What the facts and law of this matter are, and whether or not [Respondent] has good defences will need to be determined in the course of further proceedings.

In addition, the alleged causes of action based on deception (Claim, ¶ 25) or, alternatively, breach of a duty of disclosure (Claim, ¶ 27) lie at the core of the present dispute and raise a complex array of difficult issues which should not be resolved in the context of a motion to strike. Considering also both Parties' confusing characterisations of those two contentions within their respective submissions on the Application to Dismiss, the issues raised by these proceedings will need to be ascertained by the Arbitral Tribunal with careful attention to the facts. In its Statement of Claim, [Claimant] requested an order for rescission of the agreement (Claim, ¶ 30) and asserted damages in an amount of . . . (Claim, ¶ 26). What the facts and law of this matter are, and whether or not [Respondent] has good defences will need to be determined in the course of further proceedings.'

1
"Except for those disputes concerning intellectual property, any dispute, controversy or claim which is not settled by mutual agreement shall be submitted to a mutually acceptable neutral advisor for initial fact-finding in preparation for mediation or other forms of alternate dispute resolution. Any dispute which cannot be so resolved between the parties shall be referred to binding arbitration by one arbitrator appointed by both parties, failing agreement on which, each party shall appoint an arbitrator and the two so appointed shall appoint a third. The arbitration shall be conducted in confidence in Geneva, Switzerland under the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The costs of the arbitration shall be allocated by the arbitrator(s)."

2
Cf. English Civil Procedure Rule 24.2 (Grounds For Summary Judgment): "The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if - (a) it considers that - (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial. (Rule 3.4 makes provision for the court to strike out a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)"

3
Cf. English Civil Procedure Rule 3.4 (Power To Strike Out A Statement Of Case): "(...) (2) The court may strike out a statement of case if it appears to the court (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order. (3) When the court strikes out a statement of case it may make any consequential order it considers appropriate. (...) (5) Paragraph (2) does not limit any other power of the court to strike out a statement of case."

4
Nigerian Federal High Court (Civil Procedure) Rules 2000, Order 25, Proceedings in Lieu of Demurrer: "1. No demurrer shall be allowed. 2. (1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial. (2) A point of law so raised may, by consent of the parties, or by order of the Court or a Judge in Chambers on the application of either party, be set down for hearing and disposed of at any time before the trial. 3. If, in the opinion of the Court or a Judge in Chambers the decision of the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge in Chambers may thereupon dismiss the action or make such other order therein as may be just. 4. The Court or a Judge in Chambers may order any pleading to be struck out on the ground that it discloses no reasonable cause of the action or defence being shown by the pleadings to be frivolous or vexations, the Court or a Judge in Chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just. 5. No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not."

5
Alberta Rules Of Court, Striking Out Pleadings, Striking out or amending, Rule 129: "(1) The court may at any stage of the proceedings order to be struck out or amended any pleading in the action, on the ground that (a) it discloses no cause of action or defence, as the case may be, or (b) it is scandalous, frivolous or vexatious, or (e) it may prejudice, embarrass or delay the fair trial of the action, or (d) it is otherwise an abuse of the process of the court, and may order the action to be stayed or dismissed or judgment to be entered accordingly. (2) No evidence shall be admissible on an application under clause (a) of subrule (1). (...)" Alberta Rules Of Court, Summary Judgment, When available, Rule 159: "(1) In any action in which a defence has been filed, the plaintiff may, on the ground that there is no defence to a claim or part of a claim or that the only genuine issue is as to amount, apply to the court for judgment on an affidavit made by him or some other person who can swear positively to the facts, verifying the claim or part of the claim and stating that in the deponent's belief there is no genuine issue to be tried or that the only genuine issue is as to amount. (2) A defendant may, after delivering a statement of defence, on the ground that there is no merit to a claim or part of a claim or that the only genuine issue is as to amount, apply to the court for a judgment on an affidavit sworn by him or some other person who can swear positively to the facts, stating that there is no merit to the whole or part of the claim or that the only genuine issue is as to amount and that the deponent knows of no facts that would substantiate the claim or any part of it. (3) On hearing the motion, if the court is satisfied that there is no genuine issue for trial with respect to any claim, the court may give summary judgment against the plaintiff or a defendant. (4) The court may order that an action proceed or not proceed on terms binding one or more parties as to the following: (a) the giving of security; (b) time; (c) the staying of proceedings pending the determination of a counterclaim; (d) the mode of trial or other method respecting the determination of the matter. (5) Where the court is satisfied that the only genuine issue is as to amount, it may direct that the action proceed only to assess the amount or may direct a reference or accounting."

6
O. 25, r. 4 of the 1883 Rules of the Supreme Court: "4. The court: or a judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexations, the court or a judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just."

7
O. 18, r. 19 of the Rules of the Supreme Court (1962): "(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that - (a) it discloses no reasonable cause of action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under paragraph (1)(a)."

8
ln England, Rule 19 has since become Civil Procedure Rule 3.4, quoted above in note 3.

9
In footnote 1 to its Rebuttal submission dated 7 August 2003, [Respondent] contended that the "Application to Dismiss ought to be considered on the basis of the .facts and allegations set forth in the Statement of Claim [June 2003] and Reply [July 2003], and not upon the amended pleading [Reply to the Application to Dismiss dated 4 August 2003] [Claimant] now seeks to introduce." However, in the context of the Application to Dismiss, the Tribunal observes that [Claimant] consistently referred to the facts as presented in the Statement of Claim and thus does not rely in the present context on any other factual allegations. Notwithstanding the possibility of amendments to the pleadings, the Arbitral Tribunal therefore finds that it can confine its evaluation of the Application to Dismiss to the facts as described in the Statement of Claim.