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The Tin Council Litigation in the English Courts

Published online by Cambridge University Press:  21 May 2009

P. Sands
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Extract

The Sixth International Tin Agreement (hereinafter ‘ITA6’) came into force on 17 July 1982 and has as its object the stabilization and development of the international tin market for the benefit of producer and consumer States. ITA6 provides for the maintenance of floor and ceiling prices for tin, to be achieved, in part, by the establishment of an international buffer stock financed by government contributions and loans. The operation of the buffer stock is entrusted to the institutional arm of ITA6, the International Tin Council (hereinafter ‘ITC’), which has the power to borrow for the purposes of the buffer stock and to appoint a Buffer Stock Manager. Up to October 1985 the ITC, acting through the Buffer Stock Manager, defended the official floor price of tin, as set by the ITC, by making cash purchases and by financing future purchases through broker and bank loans amounting to some 900 million pounds sterling.

Type
Articles
Information
Netherlands International Law Review , Volume 34 , Issue 3 , December 1987 , pp. 367 - 391
Copyright
Copyright © T.M.C. Asser Press 1987

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References

1. For more details of the events leading up to the collapse, see McFadden, E.J., ‘The Collapse of Tin: Restructuring a Failed Commodity Agreement’, 80 AJIL (1986) p. 811CrossRefGoogle Scholar; Wasserman, J.G., ‘Tin and Other Commodities in Crisis’, 20 JWTL (1986) p. 232Google Scholar. On the history of the regulation of the tin market, see Fox, W., Tin: The Working for Commodity Agreement (1974)Google Scholar and Khan, K., The Law and Organization of International Commodity Agreements (1982)Google Scholar.

2. This article does not deal with two further cases, both so far unreported: Arabian Banking Corporation v. International Tin Council (15 January 1986) QBD, Steyn J. McLaine Watson & Co. Ltd. v. International Tin Council (13 May 1987) ChD, Millett J.

3. [1986] 3 All ER 257, Bingham J. Judgment on 17 April 1986.

4. [1987] 1 All ER 890, Millett J. Judgment on 22 January 1987.

5. Unreported transcript, Staughton J. Judgment on 24 June 1987.

6. UN Doc. E/CONF. 12/12 (1954).

7. UN Doc. TD/TIN. 6/14 Rev. 1 (1982).

8. The members are Australia, Belgium, Canada, Denmark, the Federal Republic of Germany, Finland, France, Greece, India, Indonesia, Ireland, Italy, Japan, Luxembourg, Malaysia, the Netherlands, Nigeria, Norway, Sweden, Switzerland, Thailand, the United Kingdom, Zaire and the European Economic Community.

9. UKTS 38/1972; Cmnd 4398.

10. S.I. 1972/120.

11. 1968 c. 48.

12. These objectives amount to the stabilization and development of the international tin market for the benefit of both the producer and the consumer States.

13. Arts. 3–16.

14. Arts. 17–26.

15. Arts. 27–40.

16. Art. 27.

17. Arts. 41–61.

18. Supra n. 9.

19. Supra n. 11.

20. S. 1(2)(a).

21. Supra n. 10.

22. Para. 4.

23. Para. 7.

24. Supra n. 3.

25. Ibid., at p. 258h.

26. The judgment refers to the International Wheat Council, the International Coffee Organisation, the International Sugar Organisation, the International Rubber Study Group, the International Cocoa Organisation and the International Lead and Zinc Study Group.

27. Supra n. 3 at p. 261h.

28. Ibid., at p. 262c.

29. Ibid., at p. 262d.

30. UKTS 10/1950; Cmnd. 6753.

31. As set out by Marshall, CJ in Exchange (Schooner) v. McFadden (1812) 7 Cranch 116Google Scholar.

32. Supra n. 3 at p. 263c.

33. Ibid.

34. Ibid., at p. 263e.

35. The judge quoted directly from Kohn, E.J., ‘Waiver of Immunity’, 34 BYIL [1958] p. 260 at pp. 264–265Google Scholar.

36. Cmnd. 5081.

37. Supra n. 4.

38. S. 665 of the Companies Act 1985 provides:

‘For the purposes of this Part, the expression “unregistered company” includes … any partnership (whether limited or not), any association and any company, with the following exceptions …’ S. 666 provides, inter alia:

'(i) Subject to the provisions of this Part, any unregistered company may be wound up under this Act; and all the provisions of this Act about winding up apply to an unregistered company, with the exceptions and additions mentioned in the following subsections …

(5) The circumstances in which an unregistered company may be wound up are as follows — (a) if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs; (b) if the company is unable to pay its debts; (c) if the court is of opinion that it is just and equitable that the company should be wound up …’

39. Supra n. 4 at p. 896d.

40. ICJ Rep. 1949, p. 174.

41. Millett J. set out the effects of a winding up order in some detail. These include: divesting the company of the beneficial ownership of its assets; entrusting to a liquidator the custody and control of all the property of the company and the power to manage its affairs; application of the company's assets in satisfaction of its liabilities; calling on members to make up a deficiency in the assets according to their respective obligations under the constitution; dissolving the company on completion of the winding up.

42. Supra n. 4 at p. 899g.

43. Ibid., at p. 899j.

44. S. 671 of the 1985 Act provides, inter alia:

‘(1) In the event of an unregistered company being wound up, every person is deemed a contributory who is liable to pay or contribute to the payment of any debt or liability of the company, or to pay or contribute to the payment of any sum for the adjustment of the rights of members among themselves, or to pay or contribute to the payment of the costs and expenses of winding up the company.

(2) Every contributory is liable to contribute to the company's assets all sums due from him in respect of such liability as is mentioned above …’

45. Supra n. 4 at p. 900d.

46. Citing Lord Kingsdown in Secretary of State in Council of India v. Kamachee Boye Sahaba (1859) 13 Moo PCC 22 at 75, 15 ER 9 at 28–29.

47. Supra n. 4 at pp. 900h-901a.

48. For which AMT relied on The Parlement Beige (1879) 4 PD 129.

49. Supra n. 4 at p. 901f.

50. Relying on Collco Dealings v. IRC [1961] 1 All ER 762.

51. Supra n. 4 at p. 902f.

52. Ibid., at pp. 9O2j-9O3a.

53. Citing extensively from his Proper Law of International Organisations (1962) pp. 3, 8.

54. Supra n. 4 at p. 9O3f.

55. Ibid., at pp. 905j-9O6a.

56. The six banks (with the sums claimed in parentheses, plus interest, or damages) were: Australia and New Zealand Banking Corp. (£4,463,382.47); Arbuthnot Latham Bank Limited (£2,333,023.71); Banque Indosuez (£1,165,761.39); Hambros Bank Ltd. (£7,113,025.79); Kleinwort Benson Ltd. (£8,473,267.51); T.S.B. England and Wales Pic (£5,985,175.65). The causes of action in each case were (i) money lent; (ii) breach of implied collateral; and (iii) damages for negligence or negligent misrepresentation.

57. The brokers were Amalgamated Metal Trading Ltd.; Boustead Davis (Metal Brokers) Ltd.; Gerald Metals Ltd.; Gill and Duffus Ltd.; Henry Bath & Son Ltd.; Metallgesellschaft Ltd.; Metdist Ltd.; Morcatta Ltd. Their action claimed approximately £105,000,000 and interest, or damages. The causes of action were: (i) contracts for the sale of tin; (ii) arbitration awards; (iii) margin demanded; (iv) false representations made negligently or recklessly; (v) breach of warranty.

58. The effect of the Order was to put a total of 39 summonses before the court in the Rayner action. A further 154 summonses were pending at the date of judgment.

59. Supra n. 5 at p. 21c.

60. The examples were a Scottish partnership or a French société en nom collectif.

61. From his International Institutional Law (1980) at p. 780.

62. ICC, 5 March 1984.

63. EEC Council Regulation 213/85.

64. ‘The Legal Personality of International Organizations’, 21 BYIL /1945/ p. 267.

65. Supra n. 5 at p. 25c.

66. Citing Lord Denning MR in Blackburn v. Attorney-General [1971] 1 WLR 1037, at p. 1039.

67. Citing Lord Diplock in Garland v. British Rail Engineering Ltd. [1983] 2 AC 751, at 771, and Salomon v. Commissioners of Customs and Excise [1967] 2 Q.B. 116 at 132, 143.

68. Supra n. 5 at p. 32B.

69. [1956] AC 104, per Lord MacDermott at 143.

70. Chaff and Hay Acquisition Committee v. J.A. Hemphill & Son Proprietary Ltd. [1947] 74 CLR 375.

71. Supra n. 5 at pp. 36H-37B.

72. Ibid., at p. 38A.

73. Ibid., at pp. 38H-39A.

74. Also referred to were the Asian Development Bank and the Common Fund for Commodities.

75. Diplomatic Privileges (Extension) Act 1944, in which the words ‘Legal capacities of a body corporate’ are used for the first time.

76. Supra n. 5 at pp. 40C-42B.

77. Art. 4(2)(a) states: ‘Each member shall be represented in the Council by one delegate and may designate alternates and advisers to attend its sessions.’

78. Art. 13(1) states: ‘The Executive Chairman appointed under Article 11 shall be responsible to the Council for the administration and operation of this Agreement in accordance with the decisions of the Council.’

79. In McClaine Watson & Co. Ltd. v. International Tin Council, supra n. 2 at p. 15.

80. Supra n. 5 at p. 45A.

81. The Rayner contract provided: ‘This contract is made between themselves as principals, we alone being liable to you for its performance.’

82. Supra n. 4 at p. 906j.

83. Supra n. 5 at p. 59.

84. Ibid., at p. 569.