An arbitration agreement must be produced, but its validity can be addressed in subsequent stages of enforcement under the Arbitration Act.

[1] This is an appeal by the appellant (who was the plaintiff in the High Court) against the decision of the Court of Appeal which allowed the appeal by the respondent (who was the defendant in the High Court) against the decision of the High Court dismissing the respondents application to set aside the recognition and enforcement order made on 16 July 2013 in respect of a Final Award obtained by the appellant.

[2] In this judgment, the parties will be referred to as they were in the High Court.

Background Facts

[3] On 27 September 2007, an Algerian company called CNAN Group SPA ("CNAN") entered into a Share Transfer Agreement ("STA") with the plaintiff and two others, namely, Pharaon Commercial Investment Group Limited ("Pharaon") and one Mr Mustapha Abdelwahab Laradji ("Laradji").

[4] Under the STA, CNAN would sell and transfer 51% of its shares in the defendant to the plaintiff, Pharaon and Laradji ("Purchasers"). 24.5% of the shares would be sold to the plaintiff, 24.5% to Pharaon and 2% to Laradji. The defendant was not a party to the STA. However, all of the shares in the defendant were held by CNAN.

[5] The consideration for the sale and transfer of the shares was the sum of USD9,282,000.00, of which USD6,832.000.00 was paid by the Purchasers upon the signing of the STA. The balance of USD2,450,000.00 was to be paid in five instalments over a five-year period.

[6] Under the STA, the Purchasers agreed to give a loan of USD5 million to the defendant.

[7] Clause 3.3 of the STA ("guarantee clause") provided that the payment of the balance of the purchase price would be guaranteed by the assignment to CNAN by the Purchasers of part of their claim on the repayment of the loan of USD5 million to the defendant. The assignment was limited to the amount of the balance of the purchase price for the sale and transfer of the shares under the STA. Annexure 6 to the STA referred to that guarantee and assignment. Annexure 6 was signed by the defendant.

[8] The guarantee clause further provided that the guaranteed sum of USD2,450,000.00 would be deposited into a bank account maintained in the name of the defendant. That sum was pledged as security in favour of CNAN. The pledge was referred to in Annexure 7 to the STA. Annexure 7 was also signed by the defendant.

[9] Clause 1.2 of the STA provided that the "Appendices" ("Annexures") to the STA constituted an integral part of the STA. However, in cases of conflict between the Agreement proper and the Annexures, the Agreement proper would take precedence.

[10] The STA contained cl 11.4 ("arbitration clause") that provided for the referral of any dispute between the parties to arbitration in accordance with the Rules of the International Chamber of Commerce ("ICC").

[11] After and pursuant to the STA, the defendants vessels were chartered to the plaintiff.

[12] Disputes arose between the parties.

[13] Pursuant to the arbitration clause, the plaintiff and Pharaon instituted proceedings before an ICC arbitral tribunal ("arbitral tribunal") against CNAN, Laradji and the defendant. The defendant objected to the jurisdiction of the arbitral tribunal over it as it maintained that it was not a party to the STA. The arbitral tribunal dismissed the objection.

[14] The arbitral tribunal then made an award of USD7 million, and interest, against the defendant, in favour of the plaintiff and Pharaon ("ICC arbitral award").

[15] The plaintiff subsequently filed an ex parte application before the High Court at La