Kenneth Van Der Westherzen v Rota Rabels Limited and Ors (2010/HP/387) [2010] ZMHC 113 (8 September 2010)

VAN DER WESTHERZEN v ROT A RABELS LIM ITED AND ANOR ------ KENNETH VAN DER WESTHERZEN V ROTA RABELS LIMITED YING DUAN LI LING 5. rfIGHCOURT. DR.~~ATII3I I,SC,J. gTHSEPTEMBER, 2010 2010/ HP /3 7 Civil Procedure - Arbitratio~ - ~hether a party can at any stage of the l0. proceeding refer a matter to arbitration. This vvas an application made by the defendants to stay the proceedings in this matter. The application was made pursuant to section lOof the Arbitration Act Number 19 of 2000. Held: 15. 1. A party may under the Arbitration Act make an application at any stage of the proceedings to stay the proceedings and request the Court to refer a matter to arbitration. 2. Section 10 of the Arbitration Act Number 19 of 2000, does not constrain any party that has taken steps in the proceedings. 20. 3. When an action has been referred to arbitration, it may pend before the Court while arbitral proceedings are commenced, and continued leading to a award being made. · When a ward is made and the parties are satis 1 · t· d . th the _w1 · outcome, the pended action in Court can later be di con tinu d. S. Conversely if a party is dissatisfied with the awal'd on any of tf e grounds se; out in section 17 of the Arbitration Act, he or 5 1e may resurrect the pending action. • 6 s· ince the parties chose arbitration as t eir · d . ispute resolution, the parties oug their differences. h · forum or mode of o that forum or t esoJve 30. ht t O g . - 5· CamScanner Z/\MIJT/\ LAW REPORTS Cases referred to: 5. 10. 15. 1. ChapelvN rth[1891]2Q. B. D.252. 2. Richard v L 'M'nitr' [1903] 2Ch. D. 222. 3. Edw~.rd Th Tune, Lnw I 'port 137. rcy rind ompnny v Tolrne and Another [1914 _ l91SJ hs v hs Ilrolh rs [1990] 2Ch D. J 21. 4. 5. Park r ain sa nd Company Limited vTurpin [1918] 1 KB 6. Pit h_er Limit d v Plaza Qucenbury [1940] 1 ALL E. R. isi. ·358· 7. a1n1lla Cotton Company v Grandex S. A. Tracornin S. A [1976 Lloyds Rep.10. ] 2 8. Vangel_ato _v Vangela~os,~~pea1Numbe~7 of. 2006 (unreported). 9. Leopard Ridge Safans Lun1ted v Zambia Wildlife Authorities (2008) Volume 22. R. 97. Legislation referred to: 1. Companies Act, cap 388, ss. 21, 45 (2) and 271. 2. ArbitrationActNumber19 of2000ss. 6, 10, and 17. 3. ArbitrationActof1889,s.4. 4. Rules of the Supreme Court (White Book) Order 53. Works referred to: 20. 1. Manro Robino Summaritano, International Arbitration; Law and Practice, (Kluwer Law International, 2001). 2. Julian D. M. Lew, Lukas A. Mistellis, and Stefan M. Kroll, Comparative International, (Kluwer Law International, 2003). P. Chibundi of Messrs Chibundi and Company for the plaintiff. D. Findley Ms., of Messrs N. M. Mulikita and Partners for the defendants. 25. DR. MATIBINI, SC, J.: This is an application made by the defendants to stay proceedings in this matter. The application is made pursuant to section 10 of the Arbitration Act Number 19 of 2000. Section 10 is expressed in the following terms: . . 30. "(1) A Court before which legal proceedings are brought in a matter wl11ch zs the subject of an arbitration agreement shall if a parhJ so requests at any stage of the proceedings and notwithstanding any written law, stay those proceedings and refer the parties to arbitration unless_ it finds that the agreement is null and void, inoperative, or incapable of bemgperfonned. 35. (2) Where proceedings referred to in sub section (1) have bee~ brou~~~ arbitral proceedings may nonetheless be commenced or continued:, an award may be made, while the issue is pending before the Court. , . ,n,n CamScanner - ----~---~----.:.:.:.:::::..:::::::~E~D~A~N~D~A~N~O~R----- VAN DER WESTHERZEN v ROT A RABELS LIMIT ----Tl-ris application is supported by a very short affid . e en ant in this matter In p av1 eposed to by 1 2nct d f d h Ying Quan, t 1e Mr- . M D aragrap 6 of the ff.davit in support, r. uan brought to my attention sect· o the L b f R . a i . A t·c]esofAssociahono ota a elsL1m1ted thesubJ·ect fth 1.. . 2 . e 1hgahon . r 1 . the e proceed 1ngs. echon 41s expressed in the follow in t . I ll g erms. in S diff. 24 f wn o . . . ' . . •t d 5. "Whenever any ~1 ~rence1 ~ s -,a arise between the company and the directors 011 tire one liand, an,i any o1 the members or representatives on the other hand or between any mcm?ers or classes of the members or between the director~ with regard _to anythmg done, executed, omitted or suffered in pursuance or tlre act or _with regard to any breach or alleged breach to these presents or the 1 o. Act, or wt th regard to any breach or alleged breach of these presents any claim or account of any such or alleged breach or otherwise relating to the premises or to these premises, or to any of the affairs of the company, then such differences shall be referred to the decision of the two arbitrators of whom one shall be appointed by each of the parties in difference, and any such reference 15. shall be subject to all the provisions of the Arbitration Act, any statutory modification hereof for the time being in force." Mr. Duan contends that the Articles of Association of the 1 st defendant are subscribed to by the plaintiff as member, and director of the i5t defendant. Thus, on the basis of section 24 referred to above, Mr. Duan is 20. of the opinion that the differences that arise with the plaintiff must be referred to arbitration. This application is opposed. The affidavit opposing the application was deposed to by Mr. Siakamwi, an advocate in the firm of Messrs Chibundi and company, representing the plaintiff. Mr. Siakamwi in the 25. affidavit in opposition has raised various issues relating to the shareholding; made allegations of fraudulent transfer of shares; asserted that on the face of it, the plaintiff is not a member of the company, and hence this action to regularize the position of the plaintiff in the company. All these matters and contentions are not however in my vie:"' 30. relevant to the application at hand. The substantive obje~tion ta_ke~ in this matter is that the defendants should have made this apphcatwn before taking any steps in defending this action. In view of the forego_ing, the plaintiff contends that the application is a porou defence, and raised in order to avoid responding to the main issues touching on fraud. The 35· plaintiff has therefore urged me to dismiss the application, and allow the matter to proceed to trial. In reply, Mr. Duan contends that an application to stay proceedings, and refer the matter to arbitration can be made at any stage of the proceedings, regardless of whether one has taken any steps in defending 40. CamScanner ZAMBIA LAW REPORTS the matter. Further, Mr. Duan contends that the act of incorpo t· ra ing a company has a contractua e ect etween t e company and its members as well as between or amongst members themselves. Furthermor M .' ~ Duan contends t~1a~ th~ a_rbi_tra tion clause which forms part if th1 1 ff b h 5. Article of Association 1s 111 itself an agreement to refer a matter arbitration . Finally, Mr. Duan cont nds tha t in any case, the matters ~o dispute in the 1nain action, are covered by the arbitration clause referr:~ to above. At the hearing of the application held on 16th July, 2010, the affidavit 10. evidence of the parties was augmented by oral arguments by counsel. Ms. Findley submitted on behalf of the defendants that Mr. Duan incorporated the 1st defendant. In so doing, the parties to this action subscribed to the Articles of Association. Ms. Findley submitted that by the parties subscribing to the Articles of Association, they entered into a 15. binding agreement. The resulting agreement, Ms. Findley submitted, contains an arbitration clause which specifies that the parties deliberately chose arbitration as a mode of resolving their differences; should differences arise. Ms. Findley drew my attention to section 21 of the Companies Act, 20. chapter 388 of the Laws of Zambia. Section 21 provides that: "Subject to this Act, the incorporation of a company shall have the same effect as a contract under seal between the company and its members from time to time, and between those members themselves, in which they agree to form a company whose business will be conducted in accordance with the application for incorporation, the certificate of share capital from time to time, the articles of the company from time to time and this Act." 25. Ms. Findley submitted that the effect of section 21 of the Companies Act is that on incorporation of a company, a binding agreement results between members themselves, and members and the company. 30. In the course of the arguments, Ms. Findley also drew my attention to section 6 of the Arbitration Act No.19 of 2000. In so doing, Ms Findley submitted, firstly, that section 6(1) provides that subject to sub sect!ons (2) and (3), any dispute which the parties have agreed to subrrut to arbitration may be determined by arbitration. Secondly, section 6(2) 35. provides that disputes in respect of the folJowing 1natters shall not be capable of determination by arbitration. Namely: (a) An agreement that is contrary to public policy; CamScanner VAN DER WESTH ERZEN v ROTA RABELS LIMITED AND ANOR (b) A ~isp'-:te which in terms of any Jaw, may not be d etermined b arbitration; Y (c) A ~rimin al m.a ttcr or p ro , •d ing xc ' I t in so far as permitted by w ntten 1.1 d . c 1ng l pr , or uni ' · lh' ourt gn:i nt · I av , for th b d . e t ' rrnm. ·d by arbitratjon; •tt ma er, or 5. (d) matrin1oninl au ; -) A rnatter incidenta l to a m atrimonial cause, unless the Cou rt grants lea, c for the n1a tter to b e d e termined by arbitration; (f) TI1e detern1ination of paternity, maternity, or parentage of a p erson; or (g) A n1atter affecting the interests of a minor or an individual under a 10. legal incapacity, unless the minor or individual is represented by a competent person. In v iew of the foregoing provisions, Ms. Findley submitted that the matters in dispute in this action are amenable to arbitration. In addition, Ms. Findley, drew my attention to the decision of the Suprem e Court in 15. Va ngelatos v Vangelatos. I will refer to this case in more detail la ter. M . Findley submitted that in the Vangelatos case, the Supreme Court held that the Articles of Association is a binding agreement w hich the Court has to respect. And further, Ms. Findley submitted that the i ue relating to the administration and management of the company ar e _Q. covered by Article 24 of the Memorandum and Articles of A ociation. Ms. Findley therefore urged me to give effect to the agr em en t betw n the parties in this case, and ultimately refer this matter to arbitration. Mr. Chibundi opposed this applica tion veh em entl . In oppo ina the application, Mr. Chibundi relied on the a ffidav it in oppo ition dat d - th _5. June, 2010. The steps in Mr. Chibundi's arg um nt n1 ~ ' b _ ~ t t d a l, u follow s. First, Mr. Chibundi contend specifically provid es tha t if any cliff r n :.nth mpan an directors on one h and, an any m n1 ot er h and then those d iffe renc s Second that the Pla intiff's cla un m th n1 , m a 1 n that th: Plaintiff b e recog ni zed as a m mb r b au e h w . f raudulent means. Third, smce t e company, then he cannot be bound by the arbitration clause. . rb1tra t10n . 30. . larn tion d b rebm~vef thye tha t th ari · b h b r of th ld b • h Pl · t· ff i not a m em er o r ,f rr ,d t · i f r d f mn n on the . < rb itr ti n l 1 u ain 1 d h d . . . ' r . CamScanner ZAMBIA LAW REPORTS · . h bl I t is 1shnguishabl because it As regards the Vangelatos case, Mr. Chibundi submitt d - - - - . d. t· · d' that th e is e case 1s 1ngu1s a e. concerned an aggrieved party who applied for winding up of a corn irreconcilable differcnc that ;uose amongst the maj~t~?a::i result of thecompany. Incontrasttothe in tantcase,Mr. Chibund· b ?1dersof the Plaintiff c ks t be declar d a a member so th at thsu mitted that e can later b . b e oun the ea c of Camilla Cotton Oil Company v Cranadex 5 A Trmy a~tention to · • acornm S. A (l ) · On th basi oftheprecedingauthonty Mr Chibundi subm'tt d h · 1 e t at it· is t es person · · 1 undi that allegations of dishonesty render it inappropriate for this . on thing to agree to arbitration when dealing with an hon Q · a~gue dispute to be heard by an arbitrator. . u1te anot 1er w 1en dealing with a dishonest p erson Mr Ch'b rhc s o Assoc1atJon. Mr. Chibundi drew d b 1 A t 1 . . · . 1 • · ' d I . . f . . · · . 5. lo However, the major objection taken in this matter by Mr. Chibundi is 15. premised on the authority of Chappel v North (1). I will address this authority at length in the course of this ruling. In any case, Mr. Chibundi culled from the Chapel case the proposition that a defendant is debarred from staying proceedings after taking steps in any action. Thus, Mr. Chibundi contends that by filing the defence in this action, the 2nd and 3rt1 20. defendants waived their right to stay the proceedings and to refer the matter to arbitration. Further, by taking that step, Mr. Chibundi submitted that the 2nd and 3rd defendants affirmed my jurisdiction in this matter. Lastly, Mr. Chibundi referred me to the case of Edward Grey and Company v Tolme and Runge, where the question between the parties was 25. whether as a matter of law, the contracts were alive or dead. In that ea ea stay was refused. Mr. Chibundi submitted that the question before me i also a matter of law. Namely, whether the Plaintiff was pr~perl: removed from being a member of the company. Therefore, mce ' question of law has been raised, the application ought to be refu ed. lly Mr Chibundi submitted that the issues that hav~ be~n t b d ctded m . t d th t the apphcation 15 catalogued in the statement of claim are issues that canno e ~ . arbitration. Mr. Chibund1 1n do 1ng, reitera e misconceived, and should therefore be refused. 30 F. . 1na · · a · , · · In reply Ms. Findley raised thr e issues. ' . S t' • p· t h referred me to . irs , ~ e 45(2) provides that. 35. section 45(2) of the Companies Act. e~ ion ·tal and until the first e those sztbscribers "On incorporation of a company with share capt allotment of shares by the comp~ny, the members ~hal\te company writtel'I to the application for incorporat10n w,~o have not g1ven notice of their ceasing to be members. ,...,...,,. CamScanner ------~-------=-....:...:...:..:.:...:.:::.'.::.'.:'.~::,.::~~L::· D~A~N~D~/\~N~R----- VAN DER WESTHERZEN v ROTA RAl3El S LIM[l' ~ c • . . , . · · . b 'f . . Jn view of the foregoing provision Ms Find} a1nti f gav writt 11 notic t 1 compnny and i bound b . '. 1t1c e of /\ soc1ah n· housing th c on b ey u m1tted that thcr l PI . l t t· . .5 no evidence t 1at t 1e f l s a mg t 1at he was n . t d longer a me1n er o t 1c con1pany. M . Findley therefo. ') b . f I that the t e c n en Plaintiff 1s a m 1n e1 o t· Y sec 10n 24 of A . · l b' Memorandurn e a r 1 tra ho n 5 · . 1 d agree1nent. T 1 · cy, 1 ate . argument ad, anced by Mr. Ch1bund1 that the 2m1 and 3"' d f, d barred ron11nvo ng s ctlon 10 of the Arbitration Act after t k. · · m tlus action. provides that_ a 111at~er n1ay on ~eq\test be referred to arbitration at any 10. s~age of tl:e p1?cee~1ngs. Th~ third issue relates to the arbitrability of the disputes 111 this action. Ms. Findley referred me again to section 6 of the Arbitration Act, and submitted that this matter is not excluded by the Arbitration Act. to the e en ants are a mg ep . . 111 ey submitted that section 10 of the Arbitration Act d . 1 uc ra1 ed by Ms Find I . · . M p· dl ki t · f . · . . · ' I an1 indebted to counsel for the spirited arguments, and 15. submissions. As I see it, the major objection taken to the application is that the 2nd a1_1d 3rd defendants should have made the application before taking any steps in defending this action. To support this contention, the Plaintiff has relied on the case of Chappel v North (1). The facts in this case were that the plaintiff brought an action for work done under a building 20. contract which contained a general submission to arbitration of all disputes arising out of breaches of contract. After delivery of the counter claim, the defendant took out a summons for directions for the purpose of obtaining discovery from the plaintiff. On the hearing of the summons, he applied for, and obtained leave to administer interrogatories to the 25. defendant. The plaintiff later discontinued his action, and proposed to refer the whole matter to arbitration. And, upon the defendant refusin to allow the counter-claim to be referred to arbitration, took out summons under section 4 of the Arbitration Act 1889, to stay th proceedings on the counter-claim. 30. By section 4 of the Arbitration Act 1889, it is provided that: . 0 If any party to a submission ......... commences any legal proceeding . tn any Court against any other pnrty to such legnl proceed in ,. m~y at any time or takin nny other after appearance, and before delivery o any P cn mg., ,, steps in the proceedings apply to that Court to tny the proceedings. I d · if . . 35· The trial judge dismissed the summons re ground that he had no justification to make the 0rder. The P ai_n .1 appealed from chambers. On appea , enman, ' the decision of the trial judge at chambers must be a irme · 1 D ff f rred to above, on the 1 . f ff then that ' d Of note it J was of the op1ruon ' CamScanner ZAMBIA LAW REPORTS • . . u ia d tl 5· a a t p . Th • . f th r '.) pl . Tht was a1gue taken on a . ne d Ii, r t the plaintiff had since the delivery of the counter- 1 . c a1rn t d'ff d h t ree 1 eren matters were 1. tl pr c, dings", an teps in 1 re iect . 1 . h . fir t wa p a1nhff had obta· ti1at t b . h mect a . h cm xt ns1on of time fo h 1 nts fr 111 th d ,f •ndant for t f rt e ·t pwa d1 c~unt d andcouldnotberegardect t p tak n . The second ~alter relied on w as th_Jt the plaintiff had tak 11 ut 8 ununon s for particulars of the COL\ntercJa1m. Denman, J, Was , i '" that that did a1nount to a st p in_ th proceedings. Third, f th sub qu nt to th a1n nd1nent of tl:e co.untercla1m, ~n~ upon ~he heari ng 10. of the def ndant's su1n1nons for directions, the pla1ntJff applied for and obtained leave to administer interrogatories to the defendant. Denman,}, held that that clearly amounted to a step by the plaintiff in the proceedings, and consequently, the trial judge at chambers w as right in holding that he had no jurisdiction to make the order asked for. As a 15. re ult, the appeal was dismissed. The case of Chappel v North (1) does not aid the plaintiff because section 10 of the Arbitration Act, Number 19 of 2000, is worded differently. In fact, and in effect, a party may under the Arbitration Act, make an application at any stage of the proceedings to stay the 20. proceedings and request the Court to refer a matter to arbitration. Unlike section 4 of the Arbitration Act of 1898, construed in the Chappel case, section 10 of the Arbitration Act, Number 19 of 2000, does not constrain any party that has "taken steps in the proceedings". In addition to the Chappel case, Mr. Chibundi relied on a line of ea e 25. that include Richard v Le Maitre (2); Ochs v Ochs Brothers ( 4); Pn rker Caine: and Company Limited v Turpin (5); and Pitchers Ltd v Plnzn Que n bury ( ). All these cases settle the principle that to preserve a right to arbitrate, it is essential that no step shall be taken in the action before an application is made to stay it. I have already decided that s.10 of the Arbitrati n et ding fr m 30. does not constrain any party that has taken step in the pr referring a matter to arbitration. Ms. Findley, in the course of the arguments referred n1e to the ca~e Vangelatos v Vangelntos Appenl Number 7 of 2006 (unr ported). Th fa~t~ in this Vangelatos case wer that the respond nt filed a winding up petition 35. pursuant to section 271 of th Compani s Act, b fore the High C~urt claiming that because of the _differences and disputes that had anse~ between the two major holders in the Dar Farms Transport Compan) L. that · · company should be dissolved. The appellant in that action applied for an lilllte , a company which was not party to the procee 1ngs, · d d. ,...,,.,. CamScanner VAN D ER WESTH ERZEN v ROTA RABELS LIMITED AND ANOR --------- -------=-=::..:.:..:.::~~~:__ __ ·der that the proceedings be stayed, and be referred t . provided for 1nsechon 10 of the Arbitration Act Number 19 of 2000. o ar 1 ra hon as b't . . . . · In making the applica ~ion, th appell ant deposed that Article 24 of the Me1norand1m1 and Art1cl s of As ocia tion provjded th at: "lNlrenever nny differences slra/l rise between the company, the Directors on the one !rand and nny of the members or represcntativ_es on the other hand, or 5· between any me_11zbers or clnss of members or between the Directors with n arrf to anyNzmg done, exe_cuted, or omitted or suffered in pursuance of these presents or the Act 01: 1~ith regard to any breach of these or any claim or account of any such deczswn of an arbitrator or to the decision of two 10. Arbitmtors of whom one shall be appointed by each of the parties in difference.and any such difference shall be subject to all the provisions of the Arbitration Act and any such statutory modication thereof for the time being in force." It is noteworthy that both the number of this section, and the contents 15. of the arbitration clause, are identical with the clause under discussion in the current proceedings. To continue with the narration, the trial judge in Vangelatos v Vangelatos, rejected the appellant's application stating that the d isputes in question related to differences arising from the breaches of the Memorandum, and Articles of Association. In the end, trial judge 20. held that: "I do not believe that such differences can be extended to usurp the Court's jurisdiction and the power to wind up a company which is expressly conferred by legislation." On appeal, the Supreme Court held that clause 24 of the 25. Memorandum and Articles of Association of Oar Farms and Transport Limited is couched in very broad terms. Accordingly, the Supreme Co~irt held that the parties agreed to submit themselves to an alternah e dispute resolution mechanism of any dispute or difference that would arise between them as members of Dar Farms and Tran sport Limit d . In 3o. a word, the Supreme Court held that the trial ju~ge n1isdirected him elf in holding that the issues before him w ere not arb1trabl · . Further section ] O of the Arbitra tion Act w a again a _Subj;ct ~f interpretati~n by the Supreme Court, in the case of Leopard Ridge afartsl 35 · . Lzmited v Zambia Wildlife Authority (9). Th e facts givmg ns were that on 28 th January, 2008, the respondent, Zambida L Authority, Munyamadzi Community esources Ridge Safaris Limited, entered into a un ing · e to the appea . Wildlife d eopar Board an t . ' t· Concession Agreemen · R H · · • . . ' CamScanner u 10. n 11in trial judge ordered in hi the t'X pnrte application, th Aft r p ru in 1 t, 2006, that th application hould be heard inter f 9th n th hearing of the application infer pnrtes, the respondent rai d prelinunar application on a point of law. The preliminary issue ,va rai ed pursuant to section 10 of the Arbitration Act. amely, that clause 1- of the Hunting Concession Agreement prov ided that the mode 15. of ettlen1ent of the dispute vvas by way of arbitration. It was therefore contended that the action before the High Court should be stayed to enable the parties resolve the dispute through their own choice of forum. In response, Leopard Ridge Safaris Limited, argued that Zambia ildlife Authority had rendered the lease agreement inoperative, or _o. incapable of being performed by its cancellation. In his ruling, the trial judge held that the parties were bound by the arbitration clau e in the agreement. Further, the trial judge held that since one part had requested for arbitration, there was no ground upon v hich the action could not be referred to arbitration. 25. 30. as a result of the preliminary application. The Supr m C urt On appeal Silomba, JS, delivering judgn1ent of the Supreme Court, observed that in terms of section 10 of the Arbitration et, th r w r proceedings before the trial judge in form of an ex part application for rv d th, t the leave to apply for judicial review. Justice Silon1ba ob r d t rmin d application for leave to apply for judicial revie,.v va ne i 1 not therefore see any injustice because s ction 10(2) p rn1itt d u h a situation to prevail. Justice Silon1ba ,.vent on to xplain that, hen an action has been referred to arbitration, it ma p nd b f r ourt while arbitral proceedings are comm need and ntinu d l adino- to an 35. award being made. If an award i n1ad , c1nd th parti ~ ar ati fied with the outcome, the p ended action in ourt an lat r b di continued. Conversely, if a p arty is dissati fied with th award on any of the grounds set out in section 17 of th Arbitration Act, he or she may resurrect the pending action. th CamScanner VAN DER WESTH ERZE Nv ROTA RJ\13ELS LIMITED AND /\NOR On the facts of thi cas , I therefore find that by clau 24 of the Articles of Association, th pc1rtie entered into an agreement that whenever differences arise, uch differences would be referred to arbitration. The significance or in1port of nn arbitration agreement, or arbitration clause i clearly illus trated by the observation of Manro s. Robino Sumn1artano in a book entitled, Infernntional Arbitration Law and Practice (Kluwer Law International 2001) at p. 195 as follows: "The agreement to refer a dispute to arbitraUon whether in a submission agreement or in nn nrbitrntion clause, consists in the agreement of the parties to refer to nrbitrntion one or more disputes which have already arisen 10. or which mny arise. According to the prevailing opinion such an agreement is a co1Ztract between persons or bodies acting in a private capacity to which the arbitrator who at the time is generally not even appointed is at least at that time not n party." Further, Julian D. M. Lew, Loukas A. Mistellis, and Stefan M. Kroll, 15. in Comparative International Commercial Arbitration, (Kluwer International, 2003) postulate this view at p. 129 as follows: "An arbitration agreement is the expression of the intent of the parties to withdraw their disputes from a national Court system and submit them to arbitration. The arbitration agreement will deliver the intended results if it 20. is enforceable. Only if it was validly entered into and covers the dispute in question will Courts deny jurisdiction." Thus, on the facts of this case, I hold that the 2nd and 3rd defendants are entitled, to request me to refer this matter to arbitration at any stage of the proceedings. Accordingly, since the parties chose arbitration as their 25. forum or mode of dispute resolution, I order that the parties go to that domestic forum to resolve their differences. These proceedings shall therefore be stayed pending conclusion of the arbitration. Costs follow the event. Leave to appeal is granted. 30. CamScanner