w w w . L a w y e r S e r v i c e s . i n



Atakas Ticaret Ve Nakliyat As v/s Glencore International Ag


Company & Directors' Information:- K N INTERNATIONAL LIMITED [Active] CIN = U45201UP2002PLC026841

Company & Directors' Information:- V AND S INTERNATIONAL PVT LTD [Active] CIN = U74899DL1992PTC049964

Company & Directors' Information:- S S A INTERNATIONAL LTD [Active] CIN = U15122DL1995PLC068186

Company & Directors' Information:- A T N INTERNATIONAL LIMITED [Active] CIN = L65993WB1983PLC080793

Company & Directors' Information:- D D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB1995PTC016929

Company & Directors' Information:- T K INTERNATIONAL LIMITED [Active] CIN = U55101OR1982PLC001092

Company & Directors' Information:- N R INTERNATIONAL LIMITED [Active] CIN = L74999WB1991PLC051738

Company & Directors' Information:- K J INTERNATIONAL LIMITED [Active] CIN = L15142PB1993PLC011274

Company & Directors' Information:- A K S INTERNATIONAL LIMITED [Active] CIN = U74899DL1996PLC076327

Company & Directors' Information:- S P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70100WB1994PTC063228

Company & Directors' Information:- GLENCORE INDIA PRIVATE LIMITED [Active] CIN = U00000DL1995PTC064981

Company & Directors' Information:- B. K. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999DL2006PTC157013

Company & Directors' Information:- R S C INTERNATIONAL LIMITED [Active] CIN = L17124RJ1993PLC007136

Company & Directors' Information:- J C INTERNATIONAL LIMITED [Active] CIN = U51109WB1999PLC089037

Company & Directors' Information:- M T L INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U24219UP2001PTC025965

Company & Directors' Information:- T C N S INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U51311DL1996PTC080096

Company & Directors' Information:- K V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL2003PTC120770

Company & Directors' Information:- G N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2001PTC110766

Company & Directors' Information:- S H A M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U45200MH1994PTC079867

Company & Directors' Information:- M K INTERNATIONAL LIMITED [Active] CIN = U51909DL1996PLC083430

Company & Directors' Information:- V. G. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101DL2007PTC162540

Company & Directors' Information:- D R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24132DL1996PTC079867

Company & Directors' Information:- R H INTERNATIONAL LIMITED [Active] CIN = U72900DL2007PLC159452

Company & Directors' Information:- G & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17120DL2012PTC234047

Company & Directors' Information:- A & D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U36109RJ2007PTC024176

Company & Directors' Information:- K A I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U13100OR2007PTC009647

Company & Directors' Information:- C G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U99999MH1996PTC097577

Company & Directors' Information:- K C INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060402

Company & Directors' Information:- M P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29130MH1997PTC107943

Company & Directors' Information:- A S INTERNATIONAL LIMITED [Strike Off] CIN = U74899DL1993PLC056158

Company & Directors' Information:- S. D. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UP2008PTC036047

Company & Directors' Information:- S AND I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1995PTC072210

Company & Directors' Information:- L T INTERNATIONAL LIMITED [Active] CIN = U74899DL1999PLC097892

Company & Directors' Information:- A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51102GJ2008PTC053840

Company & Directors' Information:- S J M INTERNATIONAL LIMITED [Active] CIN = U52110DL1987PLC028571

Company & Directors' Information:- S B S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL1997PTC085878

Company & Directors' Information:- R. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51225DL2008PTC177405

Company & Directors' Information:- B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50300PB2014PTC038889

Company & Directors' Information:- S F INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999PB2000PTC023654

Company & Directors' Information:- I K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066267

Company & Directors' Information:- C K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1991PTC045625

Company & Directors' Information:- L A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB2010PTC033683

Company & Directors' Information:- H R V INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899UP1993PTC057665

Company & Directors' Information:- K P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24110GJ2007PTC050026

Company & Directors' Information:- V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U85100MH1997PTC109647

Company & Directors' Information:- N N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL1999PTC099094

Company & Directors' Information:- S R V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74140DL2012PTC243060

Company & Directors' Information:- A. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51900MH2010PTC228539

Company & Directors' Information:- B R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1993PTC055562

Company & Directors' Information:- M J INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899DL1982PTC013231

Company & Directors' Information:- D N INTERNATIONAL LIMITED [Active] CIN = U36911TN1996PLC034205

Company & Directors' Information:- M. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70102DL2007PTC164267

Company & Directors' Information:- M G M INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC013580

Company & Directors' Information:- J J INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51109DL1992PTC047657

Company & Directors' Information:- H D INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060720

Company & Directors' Information:- K. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2012PTC049338

Company & Directors' Information:- J & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18109DL2012PTC238392

Company & Directors' Information:- K R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17291DL2008PTC172188

Company & Directors' Information:- S P INTERNATIONAL PVT LTD [Strike Off] CIN = U99999UP1965PTC003091

Company & Directors' Information:- B M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048736

Company & Directors' Information:- S G INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1998PTC086547

Company & Directors' Information:- B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15412WB1999PTC089316

Company & Directors' Information:- V A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL2000PTC104712

Company & Directors' Information:- S. J. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U27310DL2007PTC169438

Company & Directors' Information:- G. S. C. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29120MH1994PTC080380

Company & Directors' Information:- A J INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1994PTC060818

Company & Directors' Information:- J S M INTERNATIONAL LIMITED [Active] CIN = U85110KA1996PLC020046

Company & Directors' Information:- N M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74120MH2012PTC234492

Company & Directors' Information:- S S M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC089876

Company & Directors' Information:- A P J INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909HR2010PTC040304

Company & Directors' Information:- T. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72900DL1997PTC091049

Company & Directors' Information:- V R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2011PTC043952

Company & Directors' Information:- M E C INTERNATIONAL PRIVATE LIMITED [Active] CIN = U33111GJ1963PTC082423

Company & Directors' Information:- J K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01100MH2004PTC144492

Company & Directors' Information:- D. S. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2010PTC039954

Company & Directors' Information:- R B INTERNATIONAL LTD [Strike Off] CIN = U18101WB1993PLC059515

Company & Directors' Information:- P Y INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U51102RJ1995PTC010133

Company & Directors' Information:- R C INTERNATIONAL LIMITED [Strike Off] CIN = U51909TG1991PLC012477

Company & Directors' Information:- I AND A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72200TG1995PTC019936

Company & Directors' Information:- P V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1998PTC094598

Company & Directors' Information:- I B INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200DL2000PTC105735

Company & Directors' Information:- A M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066228

Company & Directors' Information:- A.G. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50401DL1996PTC076548

Company & Directors' Information:- Z. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U21098MH2010PTC210735

Company & Directors' Information:- J R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909TN2002PTC048744

Company & Directors' Information:- L S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74999DL2009PTC193390

Company & Directors' Information:- M B INTERNATIONAL PVT LTD [Strike Off] CIN = U52190DL2001PTC110572

Company & Directors' Information:- O K R INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900DL1996PTC077152

Company & Directors' Information:- B B C INTERNATIONAL PVT LTD [Strike Off] CIN = U25209WB1984PTC037383

Company & Directors' Information:- K S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909MH2001PTC134345

Company & Directors' Information:- A TO Z INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51101TN1992PTC022507

Company & Directors' Information:- C & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900MH1982PTC026718

Company & Directors' Information:- J S INTERNATIONAL PVT LTD [Strike Off] CIN = U51900MH1982PTC027604

Company & Directors' Information:- A C INDIA INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1989PTC034784

Company & Directors' Information:- INDIA INTERNATIONAL COMPANY PRIVATE LIMITED [Active] CIN = U51228MH1955PTC009483

Company & Directors' Information:- R K INTERNATIONAL PVT LTD [Strike Off] CIN = U63040PB1982PTC004926

Company & Directors' Information:- L & P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52100DL2016PTC292025

Company & Directors' Information:- R B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52300DL2012PTC243998

Company & Directors' Information:- P AND P INTERNATIONAL PRIVATE LIMITED. [Strike Off] CIN = U24100OR1993PTC003244

Company & Directors' Information:- E C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1982PTC013146

Company & Directors' Information:- M M INTERNATIONAL PVT LTD [Converted to LLP] CIN = U51312DL1977PTC008583

Company & Directors' Information:- A K INDIA INTERNATIONAL PRIVATE LTD [Strike Off] CIN = U45201DL1981PTC012389

Company & Directors' Information:- O P INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U55101PB2013PTC037499

Company & Directors' Information:- J & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900PB2013PTC037302

Company & Directors' Information:- Y. A. INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900RJ2012PTC040431

Company & Directors' Information:- D & A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262713

Company & Directors' Information:- R L INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18204UP2016PTC076344

Company & Directors' Information:- V P S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U93030UP2014PTC066242

Company & Directors' Information:- J V INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51102DL2012PTC240197

Company & Directors' Information:- S R L INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U20296AP2013PTC085533

Company & Directors' Information:- M D INTERNATIONAL LIMITED [Active] CIN = U74140MH1981PTC025007

Company & Directors' Information:- D C M INTERNATIONAL LTD. [Strike Off] CIN = U99999DL2000PTC004208

    Case No: 768 of 2018

    Decided On, 30 May 2019

    At, Supreme Court of Appeal of South Africa

    By, THE HONOURABLE JUSTICE PONNAN
    By, THE HONOURABLE JUSTICE SWAIN
    By, THE HONOURABLE JUSTICE ZONDI
    By, THE HONOURABLE JUSTICE SCHIPPERS & THE HONOURABLE JUSTICE GORVEN

    For the Appellant: R.W.F. MacWilliam, SC Instructed by: Webber Wentzel, Cape Town McIntyre van der Post, Bloemfontein. For the Respondent: M. Wragge, SC Instructed by: Clyde & Co., Cape Town Lovius Block, Bloemfontein.



Judgment Text

Ponnan JA (Swain, Zondi and Schippers JJA and Gorven AJA concurring):

[1] On 18 December 2012 the appellant, Atakas Ticaret Ve Nakliyat AS (Atakas), a Turkish company, purchased a consignment of coal from the respondent, Glencore International AG (Glencore). Atakas chartered the MV ‘Cecilia B’ (the vessel) from EFE Shipping and Trading Limited of Istanbul to carry the consignment from the port of Richards Bay in KwaZulu-Natal, South Africa to Turkey. On 30 October 2013 and shortly after the loading of the consignment had been completed, an explosion occurred in the number 6 cargo hold of the vessel. Subsequent investigations suggested that heated coal had been loaded, which heated further after the hold had been closed, and ignited. As a result of the explosion the voyage had to be abandoned and the cargo unloaded.

[2] On 26 June 2014 Atakas instituted a delictual action in personam against the operator of the coal terminal, the Richards Bay Coal Terminal (Pty) Ltd (RBCT), out of the High Court of South Africa, KwaZulu-Natal Division, Durban, in the exercise of its admiralty jurisdiction in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the AJRA). The latter denied liability and inter alia raised the following special plea:

‘4.1 The Plaintiff was the purchaser of the coal and its loading on board the mv “Cecilia B” at the First Defendant’s terminal occurred:

4.1.1 in terms of the contract concluded between the Plaintiff and the seller of the coal; and

4.1.2 pursuant to the seller’s contractual obligation owed to the Plaintiff to deliver the coal on board the mv “Cecilia B”.

4.2 The alleged damages suffered by the Plaintiff are in the nature of consequential loss.

4.3 The Plaintiff was vested with contractual remedies arising out of the delivery of hot coal as is alleged, alternatively could have secured or retained such remedies pursuant to its contract with the seller of the coal.

4.4 In the circumstances:

4.4.1 there is no justification for the extension of the Aquilian action so as to afford the Plaintiff a right to claim in delict against the First Defendant; and

4.4.2 the Plaintiff is not vested with any action in delict against the First Defendant for recovery of its alleged damages.

WHEREFORE the First Defendant prays that the First Defendant’s special plea is upheld and the Plaintiff’s action is dismissed with costs, such costs to include the costs consequent upon the employment of senior counsel.’

[3] On 23 February 2016 the vessel’s owners were joined as the second defendant to the proceedings. Given the nature of RBCT’s special plea, Atakas applied in terms of s 5(1) of AJRA to join Glencore as the third defendant in the action. In resisting the joinder, Glencore raised three defences: first, that clause 17[1] of the sale contract (the sale contract) between Atakas and Glencore provided that disputes should be referred to arbitration; second, that the claim had prescribed and third, that the applicant’s claims were too remote. The second and third defences were not persisted in.

[4] Although not presaged in the papers, the International Arbitration Act 15 of 2017 (the IAA) became the centrepiece of Glencore’s first defence when the joinder application was argued before the court on 9 March 2018. That the IAA had not been mentioned earlier is hardly surprising because it only came into operation on 20 December 2017, after both the answering and replying affidavits had been filed. As it turned out, it was only when Glencore’s heads of argument were filed shortly before the matter was argued, that reference was made to the IAA for the first time. Glencore contended that: (i) clause 17 of the sale contract is an ‘arbitration agreement’ as defined in s 1 of the IAA;[2] and (ii) in terms of the IAA, read with article 8 of the Model Law,[3] the court was required to stay the proceedings and refer the matter to arbitration unless it found the sale contract to be null and void, inoperative or incapable of being performed.[4] Accordingly, so the contention went, if Glencore was joined as a co-defendant it would deliver a special plea in which reliance would be placed on article 8 of the Model Law to seek a stay of the action against it. The court (per Lopes J) upheld Glencore’s argument. It referred to various foreign authorities called in aid by Glencore and concluded that it would be ‘futile to order the joinder of Glencore in the action’. The issue of whether joinder would be ordered on the facts, if a discretion remained, was not addressed by the court.

[5] Section 5(1) of the AJRA 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 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, . . . and notwithstanding the fact that he is not otherwise amenable to the jurisdiction of the Court . . .’.

The powers of joinder in terms of the section are far-reaching.[5] The extension of the court’s admiralty jurisdiction in terms of s 5(1) ‘was, from a practical point of view, clearly necessary in the interests of convenience and in order to prevent multiple proceedings’.[6] Of s 5(1), Scott JA stated:

‘. . . the object of the Legislature was clearly to permit all the parties to a dispute to be joined in an action. The absence of such provision could well result in an undesirable situation of courts in different countries having to adjudicate on the same or substantially the same issues arising out of the same incident or set of facts.’ [7]

[6] In determining whether to grant a joinder application, the court exercises a discretion.[8] Part of the assessment by a court in the exercise of its discretion will include a consideration of whether there exists an alternate forum that has been agreed as the place for the resolution of disputes. This is because s 7(1)[9] of the AJRA allows a defendant brought before a South African admiralty court to seek a stay or discharge of the action by reason of an arbitration agreement or other relevant factor suggesting jurisdiction in another forum.[10] The AJRA is a special Act which governs all admiralty matters that come before our courts. It confers wide-ranging jurisdiction upon[11] and vests South African admiralty courts with the powers set out therein. Those powers include ordering that any matter pending or arising in proceedings before it be referred to arbitration (s 5(2)(e)) or staying proceedings to enable the matter in dispute to be referred to arbitration (s 7(1)(b)). Given that the vast majority of admiralty disputes are subject to agreements that can be classified as international arbitration agreements (almost every charterparty, contract of carriage, construction and repair contract and provision of supplies contract includes such a provision) the effect of an implied repeal or restriction on the scope of the discretion conferred on a court by ss 5(1) and 7(1) of the AJRA would be extraordinarily far reaching.

[7] If accepted, the effect of the judgment of the court a quo is to put a red line through those provisions of the AJRA. However, as explained in Minister of Justice and Constitutional Development and others v Southern African Litigation Centre and others [2016] ZASCA 17; 2016 (3) SA 317 (SCA) para 118:

‘. . . repeal by implication is not favoured. An interpretation of apparently conflicting statutory provisions which involve the implied repeal of the earlier by the later ought not to be adopted unless it is inevitable. . . . Any reasonable construction which offers an escape from that is more likely to be in consonance with the real intention of the Legislature. . . . As it was put in Wendywood Development (Pty) Ltd v Rieger & another 1971 (3) SA 28 (A) at 38:

“It is necessary to bear in mind a well-known principle of statutory construction, namely, that statutes must be read together and the later one must not be so construed as to repeal the provisions of the earlier one, unless the later statute expressly alters the provisions of the earlier one or such alteration is a necessary inference from the terms of the later statute.”’

Here, there is an interpretation that offers an ‘escape’ from an implied repeal of the earlier by the latter. It is article 1(5) of the Model Law, which provides:

‘This Law shall not affect any other law of the Republic by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Law.’

The phrase ‘any other law’ in article 1(5) plainly encompasses the AJRA. Thus, what the court a quo conceived as an insurmountable obstacle (namely, the IAA) to the exercise of its discretion under ss 5(1) and 7(1) of the AJRA was more illusory than real.

[8] In my view, the IAA accordingly left untouched the discretion to permit or refuse the joinder of Glencore. The court a quo did not exercise that discretion and this court is now free to do so.[12] In heads of argument filed with this court on behalf of Glencore the following appears:

‘14. Glencore agrees the existence of a prima facie case is a prerequisite for the excise by a court of its discretion to order the joinder of a party to an action in terms of section 5(1) and that convenience is a relevant factor. Glencore also agrees that the object of section 5(1) is to avoid multiple proceedings.

15. Glencore also does not dispute that Atakas demonstrated that it has a prima facie case for its contention that the coal loaded on board the vessel heated and that the explosion on board the vessel on 30 October 2016 was caused by its heating. Glencore, however, does not accept that it breached the sale agreement or that the heating of the cargo was the cause of the explosion.’

In the light of those concessions, it seems to me appropriate to permit the joinder of Glencore as the third defendant in the proceedings.

[9] In the result:

1. The appeal is upheld with costs, including those occasioned by two counsel.

2. The order of the court below is set aside and in its stead is substituted the following:

‘(a) The respondent, Glencore International AG (Glencore), is joined as the third defendant in the action in terms of s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983.

(b) The applicant, Atakas Ticaret Ve Nakliyat AS, is granted leave to supplement its particulars of claim in order to plead its cause of action against Glencore.

(c) Glencore is ordered to pay the costs occasioned by the opposition to this application, such costs to include those consequent upon the employment of two counsel.’

[1] Clauses 17 and 18 of the sale contract provide:

‘17. Any dispute arising out of 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.’

18. This contract, including the arbitration clause, shall be governed by, interpreted and construed in accordance with the substantive laws of England and Wales excluding the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).’

[2] It was accepted that the arbitration clause in the sale contract is an ‘arbitration agreement’ as defined in s 1 of the International Arbitration Act.

[3] UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985, as amended by the said Commission on 7 July 2006 ‘UNCITRAL Model Law on International Commercial Arbitration GN 1454, GG 41347, 20 December 2017’. The Model Law is incorporated as Schedule 1 to the International Arbitration Act.

[4] 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, whilst the issue is pending before the court’.

[5] MY ‘Summit One’: Farocean Marine (Pty) Ltd v Malacca Holdings Ltd 2005 (1) SA 428 (SCA); [2004] 3 All SA 279 (SCA) (MY ‘Summit One’) para 17.

[6] G Hofmeyr Admiralty Jurisdiction: Law and Practice in South Africa 2 ed (2012) at 212.

[7] MY ‘Summit One’ fn 5 para 18.

[8] Ibid.


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>[9] Section 7(1) provides: ‘(a) A court may decline to exercise its admiralty jurisdiction in any proceedings instituted or to be instituted, if it is of the opinion that any other court in the Republic or any other court or any arbitrator, tribunal or body elsewhere will exercise jurisdiction in respect of the said proceedings and that it is more appropriate that the proceedings be adjudicated upon by any such other court or by such arbitrator, tribunal or body. (b) A court may stay any proceedings in terms of this Act if it is agreed by the parties concerned that the matter in dispute be referred to arbitration in the Republic or elsewhere, or if for any other sufficient reason the court is of the opinion that the proceedings should be stayed.’ [10] See MV Iran Dastghayb Islamic Republic of Iran Shipping Lines v Terra-Marine SA [2010] ZASCA 118; 2010 (6) SA 493 (SCA). [11] Section 2(1) provides: ‘Subject to the provisions of this Act each provincial and local division, including a circuit local division, of the Supreme Court of South Africa shall have jurisdiction (hereinafter referred to as admiralty jurisdiction) to hear and determine any maritime claim (including, in the case of salvage, claims in respect of ships, cargo or goods found on land), irrespective of the place where it arose, of the place of registration of the ship concerned or of the residence, domicile or nationality of its owner.’ [12] MY ‘Summit One’ fn 5 para 18.
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28-04-2020 Flemingo Travel Retail Limited, Having Registered Office at Turbhe, Navi Mumbai, Represented by Its Authorised Signatory Nixon Varghese Versus Kannur International Airport Limited, Mattannur, Represented by Its Managing Director & Another High Court of Kerala
18-03-2020 Union of India Versus Bharat Biotech International Ltd. & Others High Court of Delhi
13-03-2020 Dr. Rajesh Jhorawat Versus Life Cell International Pvt. Ltd., Kancheepuram & Another National Consumer Disputes Redressal Commission NCDRC
13-03-2020 Paradigm Geophysical Pty Ltd. V/S Commissioner of Income Tax (International Taxation)-3, New Delhi High Court of Delhi
13-03-2020 M/s. Shriram Capital Limited, A Limited Company represented by its Vice-President, N. Mani Versus The Director of Income Tax, (International Taxation) & Another High Court of Judicature at Madras
12-03-2020 Joshi Technologies International, Inc-India Projects Versus Union of India High Court of Gujarat At Ahmedabad
11-03-2020 M/s. Meyer Apparel Ltd. Versus M/s. Panchanan International Pvt. Ltd. High Court of Delhi
06-03-2020 Uttam Datta Versus Proprietor, International Trading Co. & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
03-03-2020 Cambridge International School & Another Versus Priyanka Punjab State Consumer Disputes Redressal Commission Chandigarh
28-02-2020 Seed Works International Pvt., Ltd. & Another Versus Banothu Rangamma & Others Telangana State Consumer Disputes Redressal Commission Hyderabad
27-02-2020 Perfect Synergy Advisory Pvt. Ltd. Versus Sagar Infra Rail International Limited & Others High Court of Delhi
24-02-2020 Saurabh Kar & Another Versus Kolkata West International City Pvt. Ltd. & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
14-02-2020 APS Forex Services Private Limited Versus Shakti International Fashion Linkers & Others Supreme Court of India
14-02-2020 Seed Works International Pvt., Ltd., Rep. by its Finance Controller, TN Rajan & Another Versus Banothu Tharya & Another Telangana State Consumer Disputes Redressal Commission Hyderabad
11-02-2020 Ircon International Limited Versus C.R. Sons Builders & Development Pvt. Ltd. & Another High Court of Delhi
07-02-2020 Swastik Builders, Satyam Apartments Next to Rowell Continental (Sunny International) & Others Versus Dr. Shobha & Others In the High Court of Bombay at Nagpur
05-02-2020 M/s. Texcel International Pvt. Ltd., Sengundram Industrial Area (Near Ford India Ltd.,), Chengalpattu Versus M/s. Chennai Steel Tubes, Rep.by one of its Partner, G. Bhavanishankar High Court of Judicature at Madras
31-01-2020 Alstom T&D India Ltd., Formerly known as Areva T&D India Ltd., Represented by its Managing Director, Rep. by its authorized signatory, Padappai Versus M/s. Texcel International Pvt., Ltd., Represented by Mukunthan C.O.O, Chengalpattu High Court of Judicature at Madras
30-01-2020 Bristol-Myers Squibb Holdings Ireland Unlimited Company & Others Versus BDR Pharmaceuticals International Pvt. Ltd. & Another High Court of Delhi
27-01-2020 Hotel Soorya International, Represented by its Partner, S. Arumugam Versus The Secretary to Government, Home, Prohibition & Excise, Chennai & Others High Court of Judicature at Madras
22-01-2020 M/s. IRCON International Limited, (A Government of India Undertaking), Rep. by its Joint General Manager(South), Bangalore Versus The Government of Tamil Nadu, Rep. by the Superintending Engineer(H), Villupuram High Court of Judicature at Madras
14-01-2020 Export Import Bank of India & Another Versus Punjab National Bank (International) Ltd. & Another High Court of Judicature at Bombay
14-01-2020 International Car and Motors Ltd. Versus Shyam Sundar Sen & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
14-01-2020 Ircon International Limited Versus Union Territory of Jammu & Kashmir & Others High Court of Jammu and Kashmir
13-01-2020 Union of India rep. By its Enforcement Officer Enforcement Directorate Chennai Versus M/s. Raiments & Garments International, Chennai & Others High Court of Judicature at Madras
06-01-2020 M/s. Prime Gold International Limited, Represented by its Director Achin Aggarwal & Another Versus The Additional Director General, The Directorate General of Goods and Services Tax Intelligence Coimbatore Zonal Unit, Coimbatore & Others High Court of Judicature at Madras
06-01-2020 Phoenix International Ltd V/S Commissioner of Central Excise, Noida-I Customs Excise Service Tax Appellate Tribunal Regional Bench Allahabad
04-01-2020 HDFC Bank Limited V/S KPG International Private Limited and Others. Debts Recovery Tribunal Delhi
19-12-2019 J. John Winfred Versus International Airport Authority of India Rep. By Airport Director, Chennai High Court of Judicature at Madras
12-12-2019 M/s. Saravana International, Rep. by its Proprietor C.R. Devanathan, Panruti Versus The Assistant Commissioner (ST), Panruti High Court of Judicature at Madras
12-12-2019 Moets Catering Services Through Its Sole Proprietor Mr. Sandeep Bindra Versus Dr. Ambedkar International Center & Others High Court of Delhi
06-12-2019 Tuli International Through it is Partner, Neeraj Tuli Versus New India Assurance Co. Ltd. Through Sh. A.K. Longai, Manager, Duly Contituted Attorney & Another National Consumer Disputes Redressal Commission NCDRC
06-12-2019 M/s. N.V. International Versus State of Assam & Others Supreme Court of India
13-11-2019 Shaji B. John, Kings International Ltd., Quilon & Others Versus The Marine Products Exports Development Authority, Cochin, Represented by Its Secretary, Dr. G. Santhanakrishnan High Court of Kerala
07-11-2019 SPT International & Finance Ltd. Versus Bank of Baroda & Another High Court of Judicature at Calcutta
30-10-2019 M/s. Usha International Ltd., Represented by its Chief Operating Officer, Haryana Versus Customs & Central Excise Settlement Commission, Additional Bench, Chennai & Another High Court of Judicature at Madras
22-10-2019 M/s. EOS GmbH-India Branch, Rep. By its Authorized Signatory, Prakasam Anand (Country Manager), Kolathur Versus The Deputy Commissioner of Income Tax, International Taxation 1(1), Chennai High Court of Judicature at Madras
17-10-2019 K.P.L. International Limited, Represented by it Senior Vice President, R.P. Mundra Versus The Commercial Tax Officer Saidapet Assessment Circle, Chennai High Court of Judicature at Madras
17-10-2019 Head Legal, Gmr Hyd International Airport Ltd. Versus Registrar, Airports Economic Regulatory Appellate Tribunal 2 High Court of for the State of Telangana
09-10-2019 M.L. Kumawat & Another Versus Bharat Bio Tech International Ltd. National Consumer Disputes Redressal Commission NCDRC
27-09-2019 Chennai Port Trust Versus Chennai International Terminals Pvt. Ltd. & Others High Court of Judicature at Madras
26-09-2019 Ajit Ravi Versus Cochin International Airport Ltd. High Court of Kerala
20-09-2019 International Society for Krishna Consciousness Versus Ishwari Prasad Singh Roy & Others High Court of Judicature at Calcutta
19-09-2019 Dharam Vir & Others Versus BGS International Public School & Others High Court of Delhi
18-09-2019 The Management of M/s. International Travel House Limited, Chennai Versus The Presiding Officer, First Additional Labour Court, Chennai & Others High Court of Judicature at Madras
29-08-2019 M/s. Kadimi International Pvt. Ltd. Versus M/s. Emaar MGF Land Limited High Court of Delhi
27-08-2019 Yun Zhang & Others Versus Sealegs International Limited Court of Appeal of New Zealand
27-08-2019 Central Board of Secondary Education, Application Branch, Shiksha Kendra, Delhi, Represented by its Secretary Versus Manager, Bethlehem International, Vazhakulam, Ernakulam & Others High Court of Kerala
19-08-2019 International Flavours & Fragrances India Pvt. Ltd., Chennai & Another Versus State of Kerala, Represented by the Public Prosecutor, Office of the Advocate General, Ernakulam & Another High Court of Kerala
09-08-2019 Glencore International AG Versus Indian Potash Limited & Another High Court of Delhi
07-08-2019 San International Business School, Rep.by its Chairman, T. Jayalakshmi Versus The Director, Centre for Affiliation of Institutions, Anna University, Chennai High Court of Judicature at Madras
07-08-2019 K. Mahendran, Trincomalee Versus Deutche Welle Radio and TV International, Colombo Supreme Court of Sri Lanka
07-08-2019 Sphere International, a proprietorship concern through its proprietor Rakesh Jalan Versus Ecopack India Paper Cup Pvt. Ltd. High Court of Judicature at Bombay
30-07-2019 M/s. Kuldip Singh Sethi & Gagan Goyal Versus Ecole Globale International Girls School High Court of Uttarakhand
29-07-2019 Bently Nevada LLC Versus Income Tax Officer, Ward-1(1) (2), International Taxation & Another High Court of Delhi
23-07-2019 KAS International, Represented by its Proprietor, Chennai Versus The Assistant Commissioner (CT), Purasawalkam Assessment Circle, Chennai High Court of Judicature at Madras
05-07-2019 M/s. Saravana International, Rep. by its Proprietor, C.R. Devanathan, Panruti Versus The Assistant Commissioner (ST), Panruti High Court of Judicature at Madras
01-07-2019 Anand Institute of International Studies, Through Shrimati Arun Pal Anand(Prop/Director), Madhya Pradesh Versus Sani Jaggi & Others National Consumer Disputes Redressal Commission NCDRC
28-06-2019 The Government of Tamilnadu, Rep.by its Secretary, Public Works Department, Chennai & Others Versus M/s. GMP International GMBH of Hardenberg Strassee 4-5, Rep.by its Authorised Singatory Col.C. Jaisankar (Retd.) High Court of Judicature at Madras
24-06-2019 R. Mallika & Another Versus Expeditors International India Pvt. Ltd., Represented by its Supervisor in Accounts department Bharanidharan High Court of Judicature at Madras
04-06-2019 Commissioner of Income, International Taxation-1, Mumbai Versus Bechtel International Inc. High Court of Judicature at Bombay
29-05-2019 Punjab State Warehousing Corporation Versus LMJ International Limited & Another High Court of Punjab and Haryana
16-05-2019 International Centre For Alternative Dispute Resolution Versus Union of India & Others High Court of Delhi
15-05-2019 R (on the application of Privacy International) Versus Investigatory Powers Tribunal & Others United Kingdom Supreme Court
14-05-2019 RUBFILA International Limited NIDA Versus Securities and Exchange Board of India, SEBI Bhavan & Another SEBI Securities amp Exchange Board of India Securities Appellate Tribunal
10-05-2019 International Cycle Gears Versus The Controller of Patents & Designs & Others High Court of Judicature at Calcutta
09-05-2019 C. Mahendra International Ltd Versus Naren Sheth & Another National Company Law Appellate Tribunal
03-05-2019 M/s. SBI Global Factors Ltd. & Another Versus Official Liquidator of M/s Minar International Limited High Court of Judicature at Bombay
02-05-2019 Gugulothu Alya Versus Seed Works International Pvt Ltd. & Another National Consumer Disputes Redressal Commission NCDRC
30-04-2019 Vijay Mohan, Sole Proprietor M/s. Agri Tech Versus M/s. Real Blue International Pvt. Ltd., Rep. by its Director Manoj Soman & Others High Court of Judicature at Madras
26-04-2019 Sumati Choraria & Another Versus M/s. Life Cell International (P) Ltd. West Bengal State Consumer Disputes Redressal Commission Kolkata
26-04-2019 Indostar Capital Versus Asst. Commissioner of Income Tax, (International Taxation) 2(2)(1) & Others High Court of Judicature at Bombay
24-04-2019 Immanuel Arasar International Institute of Science & Technology Educational Charitable Trust rep. by its Founder Trustee Sam G.Jebajoselin Versus The Regional Officer, Southern Regional Office, AICTE & Others High Court of Judicature at Madras
22-04-2019 Maars Software International Ltd. & Another Versus Union of India & Others Supreme Court of India
16-04-2019 Hotel Theni International, Rep. by its Managing Director Vinod Mathew Versus The Assistant Commissioner(CT), Commercial Tax Department, Theni-II Before the Madurai Bench of Madras High Court
12-04-2019 Director Of Income Tax International Taxation Versus M/s. Schlumberger Asia Services Ltd. High Court of Uttarakhand
09-04-2019 Joseph Santhosh Kottarathil Alexander & Others Versus The Superintendent of Customs (Aiu), Cochin International Airport, Nedumbassery, Kochi & Others High Court of Kerala
02-04-2019 M/s. Zoom International, Rep. by its Proprietrix, V.N. Usha Versus The Commissioner of Customs & Another High Court of Judicature at Madras
01-04-2019 Steel Authority of India Limited & Another Versus International Commerce Limited & Others High Court of Judicature at Calcutta