1984 November 19 [TjUANTAFYliLlDfiS, P.', A. LOIZOU. SAVVIDES, LORIS. S i.YUANIDES. JJ'.l ALKOSTAR SHIPPING CO. fcTD>. Appellants-Defendants. LA SOCIETE MAURI.TANIENNED' ASSURANCES EX DE REASSURANCES, Respondents-Rlaintijfv. (Civil,Appeal No. 6628). 5· Arbitration—Arbilratiom clause—Stay of proceedings—Section 8 oj the Arbitration Law, Gap: 4—Discretion of the Court—Brmciples applicable—Refusal to*stay-proceedings on· the ground thaV the time·for- the commencement· of arbitration'proceedings had lapsed whereasit had not—Setas'de asivhas noibeen based on< the uctittdly existing at the material'time situation—Stay of proceedings ordered by Court;of Appeal. This was.an'appeal against the dismissal· of an application- for aworderunder section 8* of theArbitration Law, Cap.4,.staying the proceedings, in an· admiralty action. The refusal» to· make an oider under section'8, above,,appeared to have been based, mainly, on the view that the time for the commencement of the arbitration proceedings had lapsed and that the commencement of such proceedings,was not possible-without an extension of time being agreed to-bythe appellants against whom the respond ents had the·claim which gave rise 1ο the filing o f the action. The trial Judge, also, found that there was discouragement of the respondents by the-appellants to· proceed to arbitration due to refusal· of the appellanls to agree to<an extension of time for this purpose: Actually, however, at the time when the admiralty action concerned was filed' the time for, the com mencement of arbitration proceedings had not yet lapsed' and 10 15 20 * Section 8 is quoted in full at p. 851 post. 849 Alkostar ι. La Societe
(1984)no extension of time was, therefore, necessary in orderto enable the respondents to take steps for the setting in mo*ion of the arbitration process Held,
(1)thatif itwasnotconvenientlortherespondentslotake steps for the setting in motion of tlie arbitration process within 5 the time available before the lapse of the relevant period that is a situation which was entirely different from the basis on which the trial Judge reached his decision which is challenged by this appeal, and that, therefore, the refusal of thetrial Judge to stay the proceedings must be set aside since it has not been 10 based on the actually existing at the material time situation
(2)That bearing in mindall therelevant principles, as regards the exercise of the discretionary powers m relation to granting a stay of proceedings in an action m order to enable a party to refer the dispute lo arbitiation, this is a proper case in which 15 lo make, and it is hereby made, an order for the stay of thepro ceedings in the admiralty action m question, under section 8 of Cap 4 Appeal alhwid Cases referred to 20 Skahotou ν Pekkanos
(1976)1 C L R
- Herman ν Darwin* Ltd [1942]. I All ER 337 Appeal. Appeal by defendant against thejudgment of a Judge of the Supreme Court of Cypms (Hadjmnastassiou, J.) dated the 25th October, 1983 (Admiralty Action No 404/78) whereby his application for an order under section 8 of the Arbitration Law, Cap. 4, staying the proceedings in the above Admiralty Action was dismissed 25 L Papaplultppou, for the appellants. 30 C. Hadjtloannou, for the respondents. TRIANTAF^ LLIDES Ρ gavethefollowingjudgment of the Court This is an appeal from the judgment of a Judge of this Court by means of which there was dismissed an application for an order under section 8 of the Arbitration Law, Cap. 4, staying the proceedings in admiralty action No 404/
- 850 35 1 C.L.R. Alkostar v. La Societe Triantafyllidcs P. The said section 8 reads as follows: 5 10 15 "
- If any party to an arbitration agreement, or any person claiming through or under him, commences any legal proceedings in any Court against any other party tothearbitration agreement or any person claiming through or under him, inrespect ofany matter agreed to be referred. any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings". The refusal of the trial Judge io make an order under section 8, above, appears to have been based, mainly, on the view that the time for the commencement of the arbitration proceedings 20 had lapsed and that the commencement of such proceedings was not possible without an extension of time being agreed to by the appellants against whom the respondents had the claim which gave rise to the filing of the aforesaid action. The learned trial Judge, after having expounded at length 25 and correctly, indeed, the relevant legal principles, proceeded, on the basis of his aforementioned view, to find that there was discouragement of the respondents by the appellants to proceed to arbitration due to refusal of the appellants to agree to an extension of time for this purpose. 30 Actually, however, at the time when the admiralty action concerned wasfiledthetimefor thecommencement of arbitration proceedings had not yet lapsed and no extension of time was. therefore, necessary in order to enable the respondents to take steps for the setting in motion of the arbitration process. 35 If it was not convenient for the respondents to do so within the time available before the lapse of the relevant period that is a situation which was entirely different from the basis, as aforesaid, on which the trial Judge reached his decision which is challenged by this appeal. 851 rriantiif>Hides Ρ: Alkustar ».. La Societe
(1984)We have- therefore, to set -isiilc the refusal of the trial' Judge to'sUy the-proceedings in the"admiralty action'since it has not been based-on'tHeactually existing at the'materia!time-situation'. The next thing which we had to>consider, was· whether, we should order that the application for stay of proceedings should- 5be-heard-again· by another Judge of this Court or- whether, we should exercise ourselves the discretionary powers which the lrial: Judge* couid have exercised on the basis of the correct situation"; and< we have* decided' to adopt the latter course. We do'nottagree with-counsel for the respondents that there- 10 e\ists-no real!dispute:beiween the parties; o n the contrary,,on· ihe'fuce'of tfie" record', there"exists in our opinion, a dispute which could' Be referred' to arbitration. Bearing; m<mind' all the relevant- principles as regards the: e\ercise' of*' the- discretionary powers in relation, to-granting a 15 stay of proceedings» in- an.action,in order to"enable a party to refer the dispute to· arbitration (see, inter alia. Skaliotou v.. P'efehanos; (.1.976) 1· C.L.R. 251, and' ffeyman v. Darwins Ltd., [1942];I- All E.R. 337), vvehold thatthis is a proper casein which" to'make; and-we'do make;·an order for the'stay of the"proceed- 20 mgs in1the'admiralty action'in question, under section' 8 of Cap. 4! As regards costs we have decided that the respondents have r e p a y touhe-appellants butft the costs before·the trial Judge and- in tMs appealAppealallowed. 852' 25