Atakas Ticaret VE Nakliyat AS v Glencore International AG (768/2018) [2019] ZASCA 77; 2019 (5) SA 379 (SCA) (30 May 2019)

Atakas Ticaret VE Nakliyat AS v Glencore International AG (768/2018) [2019] ZASCA 77; 2019 (5) SA 379 (SCA) (30 May 2019)

The Supreme Court of Appeal held that the International Arbitration Act 15 of 2017 does not impliedly repeal or restrict the discretion conferred on courts by section 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983 to permit joinder of parties. Article 1(5) of the UNCITRAL Model Law, incorporated into the International Arbitration Act, expressly preserves the operation of other laws such as the Admiralty Act. The court found that the existence of an arbitration agreement does not automatically bar the exercise of discretion to join a party in admiralty proceedings. Given Glencore's concessions regarding the prima facie case and the convenience of joinder, and the purpose of...

Citation
[2019] ZASCA 77
Parties
Appellant: Atakas Ticaret VE Nakliyat AS; Respondent: Glencore International AG
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 2019
Case Number
768/2018
Procedural Posture
Admiralty and Maritime Appeal / Appeal From Kwa Zulu Natal Local Division, High Court
Outcome
Appeal upheld; order of the court below set aside and replaced with an order permitting joinder of Glencore as third defendant, granting leave to supplement particulars of claim, and awarding costs against Glencore.
Judges
Ponnan, Swain, Zondi, Schippers, Gorven
Legal Topics
Joinder of Parties, Arbitration Agreement, Stay of Proceedings, Admiralty Jurisdiction, International Arbitration
Admiralty and Maritime Civil Procedure Joinder of Parties Arbitration Agreement Stay of Proceedings Admiralty Jurisdiction International Arbitration

Case Brief

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Parties

Atakas Ticaret VE Nakliyat AS

Appellant

Glencore International AG

Respondent

Procedural Posture

Admiralty and Maritime Appeal / Appeal From Kwa Zulu Natal Local Division, High Court

Legal Issues

  1. 1 Whether the International Arbitration Act 15 of 2017 removes or restricts the court's discretion to permit joinder under section 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983.
  2. 2 Whether Glencore International AG should be joined as a third defendant in the admiralty proceedings despite the arbitration clause in the sale contract.
  3. 3 Whether the court should exercise its discretion to permit joinder in light of the existence of an arbitration agreement.

Ratio Decidendi

The Supreme Court of Appeal held that the International Arbitration Act 15 of 2017 does not impliedly repeal or restrict the discretion conferred on courts by section 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983 to permit joinder of parties. Article 1(5) of the UNCITRAL Model Law, incorporated into the International Arbitration Act, expressly preserves the operation of other laws such as the Admiralty Act. The court found that the existence of an arbitration agreement does not automatically bar the exercise of discretion to join a party in admiralty proceedings. Given Glencore's concessions regarding the prima facie case and the convenience of joinder, and the purpose of...

Court Disposition

Appeal upheld; order of the court below set aside and replaced with an order permitting joinder of Glencore as third defendant, granting leave to supplement particulars of claim, and awarding costs against Glencore.

Orders

  • The appeal is upheld with costs, including those occasioned by two counsel.
  • The order of the court below is set aside and substituted with an order joining Glencore International AG as third defendant in terms of section 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983.