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[2018] ZAKZDHC 32
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Atakas Ticaret Ve Nakliyat AS v Glencore International AG and Others (A42/2014) [2018] ZAKZDHC 32 (20 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
(EXERCISING
ITS ADMIRALTY JURISDICTION)
CASE
NO: A42/2014
Name
of Ship: MV ‘Cecilia B’
In
the matter between:
Atakas
Ticaret Ve Nakliyat
AS Applicant
and
Glencore
International
AG First
Respondent
Richards
Bay Coal Terminal (Pty)
Ltd Second
Respondent
Owners
of the MV ‘Cecilia
B’ Third
Respondent
Judgment
Lopes,
J
[1]
This is an application for joinder in terms of s5 of the Admiralty
Jurisdiction Regulation Act, 1983, (‘the Admiralty
Act’)
read with uniform rule 10. The applicant is Atakas Ticaret Ve
Nakliyat AS (‘Atakas’). It instituted an
action in
personam against Richards Bay Coal Terminal (Pty) Ltd (‘RBCT’).
The owners of the MV ‘Cecilia B’
(‘the owners’)
were joined in that action as second defendant. Atakas now seeks an
order joining Glencore International
AG (‘Glencore‘) as
the third defendant in the action.
[2]
The background to the action may be summarised as follows:
(a) On the 18
th
December
2012 Atakas purchased four cargoes of coal from Glencore in terms of
a sale agreement.
(b) Atakas chartered the MV ‘Cecilia
B’ (‘the ship’) from EFE Shipping & Trading
Limited of Istanbul
(‘EFE’) to carry the third of the
four cargoes of coal, from the Richards Bay Coal Terminal in
KwaZulu-Natal, to Turkey.
(c) EFE had in turn charted the ship
from Cargill International SA of Geneva, which had in turn chartered
it from the owners.
(d) Pursuant to the chartering
arrangements, the ship berthed at Richards Bay Coal Terminal, which
is operated by RBCT, for the
purpose of loading the third cargo of
coal. On the 30
th
October 2013, RBCT completed
loading the coal, and the hatch covers were closed and secured.
A short while thereafter, an
explosion occurred in the number six
hold.
(e) The explosion was occasioned by a
reaction caused by loading heated coal into a confined space.
The cargo of coal was
then unloaded, and the voyage abandoned.
(f) Atakas claimed that it had
suffered loss and damage, and had incurred the risk of being liable
to indemnify other parties in
the contractual chartering chain.
(g) On the 26
th
June 2014,
Atakas caused the action in personam to be instituted against RBCT
under the above case number. On the 17
th
December 2015
RBCT delivered its plea in the action, and on the 23
rd
February 2016, by agreement between Atakas and RBCT, the owners were
joined in the action as second defendant. The owners
delivered
their plea on the 17
th
May 2016.
[3]
On the 28
th
February 2017 Atakas issued this application
to join Glencore as the third defendant in the action. RBCT and
the owners initially
opposed the joinder application, but
subsequently withdrew their opposition. Glencore persists in its
opposition to the joinder,
and answering and replying affidavits were
delivered in due course. At the outset of the hearing of this
application, Atakas sought
permission to deliver a fourth affidavit.
RBCT had discovered in the action, after Atakas had delivered its
founding and replying
affidavits in this application. Documents
received in the discovery process, and which were not previously
available to Atakas,
supported the case sought to be proved by
Atakas. In my view, a proper case has been established for the
admission of the fourth
affidavit. There can be no question of any
prejudice to any of the respondents, particularly Glencore, which did
not seek an adjournment
to deal with the fourth affidavit. I
accordingly granted an order admitting the fourth affidavit.
[4]
Atakas seeks to join Glencore pursuant to the provisions s5(1) of the
Admiralty Jurisdiction Regulation Act, 1983 (‘the
Admiralty
Act’), which provides:
‘
A
court may in the exercise of its admiralty jurisdiction permit the
joinder in proceedings in terms of this Act of any person against
whom any party to those proceedings has a claim, whether jointly
with, or separately from, any party to those proceedings, or from
whom any party to those proceedings is entitled to claim a
contribution or an indemnification, or in respect of whom any
question
or issue in the action is substantially the same as a
question or issue which has arisen or will arise between the party
and the
person to be joined and which should be determined in such a
manner as to bind that person, whether or not the claim against the
latter is a maritime claim and notwithstanding the fact that he is
not otherwise amenable to the jurisdiction of the court, whether
by
reason of the absence of attachment of his property or otherwise.’
[5]
The action which Atakas brought against RBCT and the owners is
founded in delict. Atakas’ cause of action against Glencore
is
founded in contract. There is no reason why both causes of
action cannot be dealt with in the same action. The parties
were agreed that the test for joinder in terms of s5(1) of the
Admiralty Act is that the applicant is required to establish a prima
facie case against the person sought to be joined. Convenience may
also be a relevant factor. The object of s5(1) is clearly to
avoid a
multiplicity of proceedings concerning the same dispute. Otherwise,
the undesirable situation could arise of courts in
different
countries adjudicating the same issues arising out of the same set of
facts. A court hearing an application in terms
of s5(1), retains a
discretion to permit or refuse a joinder. See: MY ‘Summit One’:
Farocean Maine (Pty) Ltd v Malacca Holdings Ltd
2005 (1) SA
428
(SCA) para 17–18.
[6]
In its opposing affidavit, Glencore raised three defences to the
joinder application:
(a) Clause 17 of the sale agreement
provides for the referral of disputes to arbitration in the following
terms:
‘
Any
dispute arising out of or in connection with this contract, including
any question regarding its existence, validity or termination
shall
be referred to and finally resolved by arbitration under the Rules of
the London Court of International Arbitration
(LCIA), which
Rules are deemed to be incorporated by reference into this clause.
The seat, or legal place, of arbitration
shall be London. The
language to be used in the arbitration shall be English…‘
As the action will inevitably be
stayed in terms of s7(1) of the Admiralty Act, pending the resolution
of the arbitration proceedings,
it would be futile to order a joinder
at this stage.
(b) The provisions of the
Prescription
Act, 1969
are applicable to Atakas’ cause of action. Any
joinder of Glencore would be futile, inasmuch as the claim of Atakas
against
Glencore has prescribed. The three year period of
prescription set out in
s11(d)
of the
Prescription Act 1969
expired
on the 28
th
October 2016, and this application for joinder
was only launched on the 27
th
February 2017. Three years’
elapsed after the cause of action had arisen, and prior to the
institution of the action.
(c) Clause 25 of the sale agreement
provides that:
‘
In
no event shall Seller be liable for any indirect, special, incidental
or consequential damages (including loss of profits) resulting
from
Sellers’ performance or non-performance of its obligations
hereunder or any third party’s purchase, use, possession
or
disposal of any of the Material.’
The damages claimed by Atakas are too
remote, and irrecoverable as they constitute ‘indirect,
special, incidental or consequential
damages’ falling within
the limitation of clause 25.
[7]
In argument, Mr
Wragge
SC, who appeared for Glencore,
indicated that he would not rely on (b) and (c) above. Instead he
raised a defence which was taken
for the first time in his heads of
argument. He submitted that clause 17 of the sale agreement falls
within the definition of an
‘arbitration agreement’ as
defined in s1 of the International Arbitration Act, 2017 (‘the
IA Act’) which
came into force on the 20
th
December
2017. In terms of the IA Act, read with Article 8 of the Model Law
incorporated therein, a court is required to stay proceedings
and
refer a matter to arbitration if a party so requests, unless it finds
the agreement or the referral to be null and void, inoperative
or
incapable of being performed.
[8]
I deal firstly with the applicability of the IA Act, and thereafter,
if necessary, the submission that in terms of s7(1) of
the Admiralty
Act it is inevitable that the action will be stayed pending the
outcome of the arbitration.
[9]
Mr
Wragge
referred to the following sections of the IA Act:
‘
3.
Objects of Act. –
The
objects of the Act are to –
(a)
facilitate the use of
arbitration as a method of resolving international commercial
disputes;
(b)
adopt the Model Law for
use in international commercial disputes;
(c)
facilitate the
recognition and enforcement of certain arbitration agreements and
arbitral awards; and
(d)
give effect to the
obligations of the Republic under the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards
(1958), the text of which
is set out in
Schedule
3
to this Act,
subject to the provisions of the Constitution.
6.
Model Law to have force of law
The
Model Law applies in the Republic subject to the provisions of this
Act.
7.
Matters subject to international commercial arbitration
(1)
For the purposes of this Chapter, any international commercial
dispute which the parties have agreed
to
submit to arbitration under an arbitration agreement and which
relates to a matter which the parties are entitled to dispose
of by
agreement may be determined by arbitration, unless:-
(a)
such a dispute is not
capable of determination by arbitration under any law of the
Republic; or
(b)
the arbitration
agreement is contrary to the public policy of the Republic.
(2)
Arbitration may not be excluded solely on the ground that an
enactment confers jurisdiction on a court or other tribunal to
determine a matter falling within the terms of an arbitration
agreement.
20.
Transitional provisions
(1)
Chapter 2
of this Act applies to international commercial
arbitration agreements whether they entered into force before or
after the commencement
of
Chapter
2
of this Act and to
every arbitration under such an agreement but this section does not
apply to arbitral proceedings which commenced
before
Chapter
2
of this Act came
into force.
(2)
For purposes of this section, the date of commencement of the
arbitration proceedings is the date upon which the parties agree
as
the date on which the arbitral proceedings commenced or failing such
agreement, on the date of receipt by the respondent of
a request for
the dispute to be referred to arbitration.’
[10]
Mr
Wragge
submitted that the effect of the IA Act is to
curtail the discretion of a court in admiralty with regard to s7(1)
of the Admiralty
Act. The ambit of a court in admiralty being able to
decline to exercise its jurisdiction pursuant to an arbitration
agreement
as contained in s7(1) of the Admiralty Act, will no longer
apply to international arbitration agreements.
[11]
Section 1 of the IA Act provides that an ‘arbitration
agreement’ means an arbitration agreement referred to in
article 7 of the Model Law (the Model Law refers to the UNCITRAL
Model Law on International Commercial Arbitration adopted by the
United Nations Commission on International Trade Law). Mr
Wragge
submitted that the IA Act was applicable, and in
support of this submission, he referred to s20 of the IA Act which
states that
chapter 2 of the IA Act applies to international
commercial arbitration agreements whether they were entered into
force before
or after the commencement of that chapter. Section
20 of the IA Act does not apply to arbitral proceedings which
commenced
before chapter 2 of the IA Act came into force. It has not
been suggested that the arbitration proceeding foreshadowed in clause
17 has commenced.
[12]
The logical sequence of Mr
Wragge’
s argument is, as I
understand it, as follows:
(a) Atakas and Glencore concluded the
sale agreement which contained the referral of disputes to
arbitration in London.
(b) Section 1 of the IA Act defines an
arbitration agreement as ‘an arbitration agreement referred to
in
article 7
of the Model Law;’
Article 7 of the Model Law provides
that an arbitration agreement is
:
‘…
an
agreement by the parties to submit to arbitration all or certain
disputes which have arisen or which may arise between them in
respect
of a defined legal relationship, whether contractual or not. An
arbitration agreement may be in the form of an arbitration
clause in
a contract or in the form of a separate agreement.’
It is also required that the
arbitration agreement shall be in writing.
(c) Section 7 of the IA Act sets out
when an arbitration is not applicable, and it is not suggested that
s7 is applicable here.
(d) Clause 17 of the agreement between
Atakas and Glencore is, therefore, an international
arbitration agreement.
(e) Section 6 of the IA Act provides
that the Model Law applies in the republic subject to the provisions
of the IA Act. Article
8 of the Model Law provides
:
‘
(1)
A court before which an action is brought in a matter which is the
subject of an arbitration agreement shall, if a party so
requests not
later than when submitting his or her first statement on the
substance of the dispute, stay those proceedings and
refer the
parties to arbitration unless it finds that agreement is null and
void, inoperative or incapable of being performed.
(2)
Where an action referred to in paragraph (1) of this article has been
brought, arbitral proceedings may nevertheless be commenced
or
continued, and an award may be made, while the issue is pending
before the court.’
(f) Article 8(1) of the Model Law is
peremptory.
(g) The fact that Glencore delivered
an answering affidavit without referral to the IA Act does not mean
that Glencore had submitted
its ‘first statement on the
substance of the dispute’. An answering affidavit should
not be viewed in the same
light as, for example, a special plea,
which would have constituted a statement on the substance of the
dispute.
[13]
Mr
Wragge
referred me to a judgment of the Bombay High Court
in
Jashu M Patel vs Shivdatta R Joshi
2003 (1) ALLMR 1080 on
the 9
th
December 2002 where the clause ‘first
statement of defence’ was considered. Rebello J stated:
‘
The
expression, therefore, “first statement on the substance of the
dispute” need not necessary mean filing of written
statement.
It may be a reply other than a written statement though written
statement can be said also to constitute first statement
on the
substance of the dispute as set out earlier. The expression “first
statement on the substance of the dispute”
must be a statement
which would indicate the clear intention of the party not to refer
the dispute to arbitration and to proceed
with the proceedings before
the Judicial authority. The statement or reply could be in
interlocutory proceedings. The reply
or statement must clearly
disclose that the party intends to get its disputes resolved not by
the Arbitral Tribunal, but by the
Judicial forum and that it waives
its right under the contract and acquiesce in the jurisdiction of the
judicial authority’
In
that case an answer to an interim application was being considered.
The court stated that it must be clear that the party is
aware of the
arbitral clause and yet intends not to invoke the arbitral clause but
acquiesce in the judicial proceedings.
It required the
intention to do so to be clear and unequivocal. It was
necessary that the pleadings and record disclose,
that though the
party is aware of the arbitral clause and that it covers the dispute,
it nonetheless does not elect to invoke the
arbitral clause.
The court stated further that:
‘
To
be construed as first statement on the substance of the dispute, must
mean that the Judicial authority before whom the reply
is filed, can
from the reply be able to hold that the cause of action of the suit
or the entire subject matter is governed by the
arbitral clause
including the relief sought and yet the party has shown its intention
not to invoke the arbitral clause’.
[14]
In Clare Ambrose, Karen Maxwell, and Anghard Parry,
London
Maritime Arbitration
3 ed (2009) at 97-99, the concept of a step
taken in proceedings to answer a substantive claim was considered.
The learned
authors were of the view that whether an act amounts to a
step in the proceedings to answer a claim, will depend on all the
circumstances,
and a court must make an objective assessment of
whether a party has impliedly affirmed the proceedings and indicated
a willingness
to defend the claim, rather than merely maintaining the
status quo pending the issue of an application for a stay.
Reference
is made to the decision in
Eagle Star Insurance Co Ltd v
Yuval Insurance Co Ltd
[1978] 1 Lloyd’s Rep 357 at 361
where Lord Denning MR stated:
‘
On
those authorities, it seems to me that in order to deprive a
defendant of his recourse to arbitration a “step in the
proceedings”
must be one which impliedly affirms the
correctness of the proceedings and the willingness of the defendant
to go along with a
determination by the Courts of law instead of
arbitration.’
In
Capital Trust Investments Ltd v Radio Design
TJ AB &
Others
[2002] EWCA Civ 135
;
[2002] 2 ALL ER 159
para 57, Clarke LJ, referred to
Patel
v Patel
[1999] 1 ALL ER (Comm) 923
at 925 where Lord Woolf MR set
out the old law as summarised in Mustill & Boyd
Commercial
Arbitration
2
nd
edn (1989)
,
at 472 as
follows
‘
The
reported cases are difficult to reconcile, and they give no clear
guidance on the nature of a step in the proceedings. It appears,
however, that two requirements must be satisfied. First, the conduct
of the applicant must be such as to demonstrate an election
to
abandon his right to stay, in favour of allowing the action to
proceed. Second, the act in question must have the effect of
invoking
the jurisdiction of the court’.
Examples
given by the learned authors in Ambrose et al
London Maritime
Arbitration
at 96-97, maintain that a step in a proceeding would
probably not include pre-trial procedural steps designed to maintain
the status
quo, for example, an application for an extension of time
within which to serve a defence, or an application to set aside the
service
of proceedings, or an agreement to put up security for a
ship.
[15]
Mr
Wragge
also referred me to the decision of
Nanisivik
Mines Ltd v F.C.R.S. Shipping Ltd
[1994] 2 FC 662
, Federal Court
of Appeal, Canada. In this matter Nanisivik and Canarctic
Shipping Company Ltd had concluded a charter party
containing a
clause referring disputes to arbitration in London. The cargo
was lost when the ship sank en route from
Nanisivik, Canada to the
United States of America. Canarctic relied on the arbitration
clause in the charter party and article
8 of the Commercial
Arbitration Code (being a schedule to the Commercial Arbitration Act,
R.S.C, 1985 (2
nd
Supp.), C.17, seeking an order referring
the matter to arbitration. Article 8 of the Commercial
Arbitration Code is identical
in wording to article 8 of the Model
Law (presumably having been based on it). The appeal court dealt with
the fact that the chambers
judge had decided that because of a
prospect of inconveniently overlapping litigation and the risk of
conflicting decisions, that
he should refuse to refer anything to
arbitration. The appeal court stated:
‘
The
international community has arrived at a consensus that compliance
with commercial arbitration agreements is to be enforced
by the
courts provided they are in writing, not null and void nor
inoperative nor incapable of performance. Canada and its
provinces have given that consensus the force of domestic law.
If there had otherwise being any arguable question as to the
mandatory character of a court’s duty when article 8 is duly
invoked, subsection 4(1) of the Act removes it. In both its
ordinary
meaning and in light of the object and purpose of the Act, “shall”
clearly means “must” not “may”.
In my
opinion, the Motions Judge had no discretion in the circumstances but
to refer the claim of Nanisivik against Canartic to
arbitration …’
The
reference to subsection 4(1) of the Commercial Arbitration Act
provided that:
‘
This
Act shall be interpreted in good faith in accordance with the
ordinary meaning to be given to its terms in their context and
in the
light of its object and purpose.’
After
referring to various authorities, the court stated:
‘
As
stated, the choice is between the stay of proceedings as between the
parties to the arbitration ensuing upon the reference without
an
exercise of judicial discretion, or granting a discretionary stay
unless they are “strong reasons” not to.
All of the
policy considerations that militate in favour of the mandatory
legislative requirement that a dispute subject of an
arbitration
agreement be referred to that arbitration seem to me also to militate
conclusively in favour of the staying of the
litigation of the same
issues until the arbitration award has been made. It seems far more
likely that otherwise that disposition
of those issues will resolve
the entire litigation, if not among all the parties at least among
those party to the arbitration.
I
conclude that, once a reference to arbitration has been made, there
is no residual discretion in the court to refuse to stay all
proceedings between the parties to the arbitration even though there
may be particular issues between them not subject of the
arbitration’.
[16]
In the course of its judgment the appeal court referred to
Seapearl
(The Ship M/V) v Seven Seas Dry Cargo Shipping Corporation of
Santiago, Chile
[1983] 2 F.C. 161
(CA) at 176-177, where the
court, in dealing with a matter antedating the coming into force of
the Commercial Arbitration Act,
held:
‘
Prima
facie,
an application
to stay proceedings commenced in the Federal Court in defiance
of an undertaking to submit a dispute to arbitration
or to a foreign
court must succeed because, as a rule, contractual undertakings must
be honoured. In order to depart from
that
prima
facie
rule, “strong
reasons” are needed, that is to say reasons that are sufficient
to support the conclusion that it would
not be reasonable or just, in
the circumstances, to keep the plaintiff to his promise and enforce
the contract he made with the
defendant. This is the principle
which is now applied in England and in the United States; that is
also, in my opinion, the
principle that should be applied in this
Court.’
In
Nanisivik
, the appeal court referred to suggestions by the
lower court that the inherent jurisdiction of the court may occasion
a departure
from this approach. This was eschewed by the appeal
court.
[17]
Mr
MacWilliam
SC, who appeared together with Mr
Wallis
for
Atakas, submitted that Atakas had invoked its right to joinder in
2017, when it had issued the application for joinder.
He
submitted that Atakas is entitled to apply for the order it seeks
because it had already invoked its right to do so in terms
of ss5(1)
and 7(1) of the Admiralty Act. Once it had invoked the right to
claim in terms of those subsections, the IA Act
could not interfere
with the rights of Atakas.
[18]
Mr
MacWilliam
submitted that with regard to Glencore’s
right to apply for a stay of the proceedings and a referral to
arbitration, Glencore
was in breach of the article 8 of the Model Law
because it had already submitted its ‘first statement on the
substance of
the dispute’. That first statement came
about when Glencore delivered its answering affidavit in the joinder
application.
At that stage the IA Act had not yet commenced,
and had it been of force, Glencore would no doubt have invoked it in
its answering
affidavit. What Glencore is attempting now to do
is to apply the provisions of the IA Act retrospectively, because it
was
not available when its answering affidavit was delivered.
This is simply a matter of bad luck because of the timing, and there
is nothing which can now be done by Glencore to remedy the position.
[19]
Mr
McWilliam
also submitted that the effect of the submission
on behalf of Glencore meant that the IA Act has in part repealed the
provisions
of s7(1) of the Admiralty Act. This is because the
discretion which vested in the court with regard to international
arbitrations
is now removed. In this regard Mr
McWilliam
pointed to s4 of the IA Act which provides that the
Arbitration Act,
1965
is no longer applicable to an arbitration agreement which falls
within the ambit of the IA Act. This was a specific revocation
of the authority vested in the
Arbitration Act. In
order to
have done the same to s7(1) of the Admiralty Act, it had to be
specifically referred to in the IA Act, which it is not.
[20]
This is an application to join Glencore in the action instituted by
Atakas. That action is to proceed in this court. Mr
Wragge
submits that the IA Act is binding on this court, and it excludes the
court’s jurisdiction because Atakas and Glencore agreed
to have
their disputes referred to arbitration. The wording of the clause
referring disputes to arbitration is peremptory –
ie ‘shall
be referred and finally resolved…’. No relief has yet
been sought by Glencore in terms of s7 of the
Admiralty Act, staying
the action pending the determination of the arbitration. It is
submitted, however, that joinder would be
futile if a s7 order would
inevitably be made in favour of Glencore.
[21]
On Glencore’s own case, the provisions of the IA Act cannot be
invoked by it if Glencore has submitted its ‘first
statement on
the substance of the dispute’. In Glencore’s answering
affidavit it dealt extensively with its right to
arbitrate its
dispute with Atakas. Clearly it could not, and had not, anticipated
the enactment of the IA Act. Glencore, however,
did not demonstrate
before this court, any intention to proceed on the substance of the
dispute. There is no abandonment of its
right to rely on the referral
of its disputes to arbitration. That is in fact the substance of its
answering affidavit.
[22]
The application to join is a procedural step taken by Atakas.
Glencore sought, in its answering affidavit, to block that step
by
averring that the parties agreed to their disputes being arbitrated,
and not be decided by a court of law. Its defence amounted
to no more
than that, and did not purport to deal with the various defences on
the merits.
[23]
The Bombay High Court in
Jashu M Patel
went so far as to
suggest that the ‘first statement on the substance of the
dispute’ must have the effect of a waiver
of the parties rights
to arbitration and an acquiescence in the court’s jurisdiction.
Waiver is contractual in nature and
in accordance with our common
law, must be done expressly or by conduct plainly inconsistent with
an intention to enforce the right
allegedly waived. See:
Collen v
Rietfontein Engineering Works
1948 (1) SA 413
(A) at 436. That is
precisely what Glencore did not do.
[24]
If Glencore did not submit its ‘first statement on the
substance of the dispute’ it is not prevented from invoking
the
provisions of the IA Act. This is not a case of Glencore seeking to
apply the provisions of the IA Act retrospectively. The
fact that it
had not submitted its ‘first statement on the substance of the
dispute’ in its answering affidavit accords
with the wording of
the IA Act. The provisions of the IA Act accord with the conduct of
Glencore in the action thus far, and its
opposition to the joinder
application.
[25]
Mr
MacWilliam
submitted that if the IA Act was not available
when Glencore’s answering affidavit was drafted, it is not
available to it
now. I do not agree with that submission because the
transitional provisions contained in s20 of the IA Act provide that
chapter
2 of the IA Act is applicable to international commercial
arbitration agreements whether entered into force before or after the
commencement of chapter 2 of the Act. Section 6 of chapter 2 renders
the Model Law applicable in the Republic. Article 8 of the
Model Law
provides that a court shall, if a party so requests, stay the
proceedings and refer the parties to arbitration. This
is an
application for joinder. Glencore is not, as yet, part of the action.
Accordingly, when Glencore delivered its answering
affidavit, it did
no more than set out some defences, which may be seen as ‘the
dispute’ justifying the referral to
arbitration. They cannot be
construed as a step in the proceedings to enforce the claim by
Atakas, nor do they constitute a ‘first
statement on the
substance of the dispute’. There is no doubt, that were I to
grant the joinder, Glencore would apply to
refer the action to
arbitration in terms of the IA Act.
[26]
The fact that a specific reference is made in the IA Act to
provisions of the
Arbitration Act, 1965
and not to the Admiralty Act
is logical. The provisions of s7 of the Admiralty Act will not
be rendered nugatory by the introduction
of the IA Act. It will still
apply to arbitrations to be conducted in the Republic. It would
therefore be inappropriate to
repeal s7, and that is probably why
there is no reference to the Admiralty Act in the IA Act.
[27]
There is, accordingly, no need for me to consider or resolve the
other arguments raised regarding the applicability of the
IA Act in
this action. As I am of the view that the IA Act will be binding on
the parties and it is applicable in the proposed
action between
Atakas and Glencore, I agree that it would be futile to order the
joinder of Glencore in the action. I see no reason
why costs should
not follow the result.
[28]
In the circumstances, I make the following order:
The application for the joinder of
Glencore International AG is dismissed with costs, such costs to
include those consequent upon
the employment of senior counsel.
____________________
Graham
Lopes J
Dates
of hearing: 9
th
March 2018.
Date
of Judgment: 20
th
April 2018.
Counsel
for the Plaintiff: Mr R W F
MacWilliam
SC and Mr P J
Wallis
(instructed by Webber Wentzel c/o Goodrickes).
Counsel
for the Defendant: Mr M
Wragge
SC (instructed by Clyde &
Co c/o
Livingston
Leandy).