ADCC 1120/2021

This case involved whether a statement in an amended memorandum of association stated the rest of the terms of the original agreement remained in place meant an arbitration clause in that original agreement was still relevant when there was no specific reference to it in the new agreement.

Background

The shareholders of a limited liability company included an arbitration agreement in the memorandum of association at the time of the company’s incorporation. The memorandum was attested by a public notary and registered with the commercial registrar. The arbitration agreement between the parties stated that ‘In the event that any dispute arises regarding the interpretation, implementation, or application of the agreement [the memorandum of association] provisions or for any other reason, it shall be resolved by amicable means agreed upon between the parties. If this is not agreed upon, the dispute shall be referred to an arbitration tribunal composed of three arbitrators’.

Subsequently, one of the shareholders sold all their shares to the other shareholder and the amended memorandum of association which reflected the new share ownership was attested by a public notary and registered with the commercial registrar.