of the argument, to several members of this court that not only did Kamoto dispute both its liability to submit to arbitration under the provisions of the main agreement and any liability under the interim agreement, but also that Kamoto took the position that even if the court found that it was bound by the arbitral provisions of the main agreement, the arbitrator could not have jurisdiction even to consider the claims arising from the interim agreement. The reason that was given was that the arbitration tribunal could not decide its own jurisdiction and the interim agreement contained no reference to dispute resolution procedures. Furthermore, Kamoto appeared to contest its liability under the interim agreement not only because that agreement contained no reference to dispute resolution procedures, but also because Kamoto had not been a party to the interim agreement which, it contended, stood entirely separate and apart from the main agreement. [25] In its answering affidavit, Kamoto accepted that in terms of the merger agreement, it the debtor to the creditors of and that it all of ‘becomes DCP’ ‘acquired and obligations, assets and liabilities on 31 December It DCP’s goods, rights 2008’. then goes on to contend that: dispute resolution regime agreed between those parties in the main agreement was not ‘The agreed by the respondent and was not an obligation assumed by the respondent in terms of the merger agreement’. Kamoto thereafter adds that: respondent submits, therefore, that although it accepted all of rights and ‘The DCP’s “goods, obligations, assets and liabilities on 31 December in terms of the merger agreement, it 2008” did not thereby agree to the submission to arbitration of disputes relating to goods, “such rights and obligations, assets and either under the main agreement or the interim liabilities” agreement.’ [26] In its replying affidavit, Zhongji Construction says: was the that the respondent had submitted to arbitration the ‘[I]t applicant’s understanding disputes under the main agreement, and that the only issue at the time of launching these proceedings was whether the respondent had submitted to arbitration the disputes pertaining to the interim agreement’.
of the argument, to several members of this court that not only did Kamoto dispute both its liability to submit to arbitration under the provisions of the main agreement and any liability under the interim agreement, but also that Kamoto took the position that even if the court found that it was bound by the arbitral provisions of the main agreement, the arbitrator could not have jurisdiction even to consider the claims arising from the interim agreement. The reason that was given was that the arbitration tribunal could not decide its own jurisdiction and the interim agreement contained no reference to dispute resolution procedures. Furthermore, Kamoto appeared to contest its liability under the interim agreement not only because that agreement contained no reference to dispute resolution procedures, but also because Kamoto had not been a party to the interim agreement which, it contended, stood entirely separate and apart from the main agreement. [25] In its answering affidavit, Kamoto accepted that in terms of the merger agreement, it ‘becomes the debtor to the creditors of DCP’ and that it ‘acquired all of DCP’s goods, rights and obligations, assets and liabilities on 31 December 2008’. It then goes on to contend that: ‘The dispute resolution regime agreed between those parties in the main agreement was not agreed by the respondent and was not an obligation assumed by the respondent in terms of the merger agreement’. Kamoto thereafter adds that: ‘The respondent submits, therefore, that although it accepted all of DCP’s “goods, rights and obligations, assets and liabilities on 31 December 2008” in terms of the merger agreement, it did not thereby agree to the submission to arbitration of disputes relating to “such goods, rights and obligations, assets and liabilities” either under the main agreement or the interim agreement.’ [26] In its replying affidavit, Zhongji Construction says: ‘[I]t was the applicant’s understanding that the respondent had submitted to arbitration the disputes under the main agreement, and that the only issue at the time of launching these proceedings was whether the respondent had submitted to arbitration the disputes pertaining to the interim agreement’.
2226_Judgment%20-%20Zhongji%20Construction%20v%20Kamato%20Copper%20Co.docx