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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> African Distribution Company SARL v AASTAR Trading Pte Ltd [2025] EWHC 2428 (Comm) (24 September 2025) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2025/2428.html Cite as: [2025] EWHC 2428 (Comm), [2025] WLR(D) 502 |
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KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT
IN AN ARBITRATION CLAIM
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
 AFRICAN DISTRIBUTION COMPANY S.a.R.L |
Claimant / Respondent to Arbitration |
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| - and - |
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| AASTAR TRADING Pte Ltd |
Defendant / Claimant in Arbitration |
____________________
Mr James Lamming (instructed by MFB Solicitors) for the Defendant
Hearing dates: 18th July and 24th September 2025
____________________
Crown Copyright ©
HHJ TINDAL:
Introduction
African Distribution Company S.a.R.L. ('ADC'), a company from Cote d'Ivoire, to set aside an arbitration award by an English Arbitrator, Mr Noyce ('the Arbitrator') dated 21st February 2024 ('the Award') in favour of a Singaporean company, AASTAR Trading ('AASTAR'). ADC took no part in that arbitration, as it says it was never served with notice of the proceedings, nor knew anything about them, until it received the Award on 8th July 2024 in Ivorean enforcement proceedings brought by AASTAR. However, ADC contends that it was not formally served with the Award in those proceedings on 30th July 2024, which prompted ADC to issue this claim on 27th August 2024.
a. In Bernuth Lines v High Seas Shipping [2006] 1 CLC 403, Christopher Clarke J (as he then was) suggested s.72(1) was primarily intended for pre-award challenges and Merkin and Flannery on the Arbitration Act 1996 (2019) (6th Ed) para.72.2.6 suggest it is limited to such challenges.
b. However in The Prestige (No.1) [2014] 1 All ER 300 (Comm) Walker J took the view, after full argument, that s.72(1) could apply to challenges after an award and was not the subject of a time-limit, although this was obiter as he extended time for the challenge in any event. This view was also adopted by Eder J in Sino Channel Asia v Dana [2016] Bus LR 778, not the subject of comment when the Court of Appeal allowed an appeal. Russell on Arbitration (2015) (24th Ed) para.7-152 inclines to this view.
Mr Lamming contends that 'interpretation (a)' of s.72(1) AA is correct, whilst Mr Wassouf favours 'interpretation (b)', although cautiously, as I will explain.
"Accordingly, although each case turns on its own facts, the following considerations are…likely to be material: (i) the length of the delay; (ii) whether, in permitting the time limit to expire and the subsequent delay to occur, the party was acting reasonably in all the circumstances; (iii) whether the respondent to the application or the arbitrator caused or contributed to the delay; (iv) whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed; (v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration or the costs incurred in respect of the determination of the application by the court might now have; (vi) the strength of the application; and (vii) whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined."
I will consider these 'Kalmneft Factors' in my conclusions on the extension at the end, after addressing two pure legal issues. Firstly, the 's.72(1) point' of statutory interpretation relevant to factor (vii). Secondly, whether sending a notice of arbitration to a generic email address can be good service of arbitral proceedings, discussed in Bernuth and other cases and relevant to factor (vi). But I will start with the factual background.
Factual Background
a. Firstly, the contention that 'the use of email in general in our dealings with Aastar was not systematic or the norm for daily communications' has to be read in the light of documentary evidence showing repeated use of generic emails for quite important communications to AASTAR.
b. Secondly, whilst M Niangadou says he checked the generic email inboxes and could not find any relating to the arbitration (speculating they might have been filtered as 'spam' and been deleted 'over time'), he does not specify what he searched (i.e. whether her checked 'spam' or 'junk' email folders), or when (given his statement was 11 months after proceedings were issued and two years after the arbitration started).
c. Thirdly, a party cannot rely on the content of legal advice they were given whilst reserving still privilege over it, as opposed to simply referring to the fact of taking legal advice: as Males J (as he was) said in Mid-East Sales v ET Ltd [2014] EWHC 892 (Comm). Mr Abu-Manneh only refers to the fact of Ivorian Law advice and whilst M Niangadou goes into the content of advice, Mr Wassouf has confirmed that ADC does not rely on that content; and I will proceed on that basis.
"...[T]here are extensive conflicts of evidence between the parties ......I am not in a position to evaluate the evidence as it appears on the statements in a way which enables me to take this into account as a factor one way or the other in the context of an extension of time."
distribution of fresh or industrial natural food products. AASTAR is a Singaporean trading company specialising in supply of various products including food products. From May 2021 to March 2022, they entered into numerous contracts (16 were considered in the Award) for the supply by AASTAR to ADC of Indian rice (the one contract for Vietnamese rice was not considered in the Award) with a clause for arbitration by the Grain and Feed Trade Association ('GAFTA').
African Distribution Company' and was 'cc-ed' to Prem Gurbani and ADC's generic emails 'adc@adc.ci' and 'adc_ci@yahoo.fr'. This would have been a different subject line – and from a different email address (AASTAR's lawyers not AASTAR itself) – from previous emails by AASTAR to ADC.
"2.2. All communications from the Tribunal to the parties (and from Claimants to Respondents during the proceedings were through GAFTA, as secretariat of the procedure under GAFTA Arbitration Rules No.125 and thus were correctly served upon both parties."
However, in the very next paragraph, the Arbitrator added that:
"2.3. On 20 July 2023, [the] Claimants served Notice of Arbitration on [the] Respondents."
I discuss below the key factual issue whether this email was received by ADC at its generic emails; and if so, whether it was opened and read; and likewise, all the arbitral emails sent by GAFTA to ADC's generic emails. I also return to whether 'Dennis Matthew' sending the Notice of Arbitration to ADC's generic emails was in law valid service. But the point is that it is AASTAR's case – which the Arbitrator accepted – that AASTAR's lawyers emailed ADC the Notice of Arbitration and from then on emails were through GAFTA.
"Mr Ferrigno['s statement] expresses…disbelief 26 emails related to the GAFTA arbitration and sent to the generic email addresses would have been 'missed'. I confirm I have not seen these emails at any time; and to the best of my knowledge, none of my ADC colleagues have seen them either. In fact, during the preparation of this testimony, I did a new search in the inboxes of generic email addresses and did not find the emails regarding the arbitration contained there….I don't know why these emails weren't received - it could be that because they contained similar subject lines and content (referring to GAFTA) and came from people we didn't receive emails from, they were filtered through 'spam' filters and over time were deleted. This is speculation …and I am not certain."
I tease apart two factual issues here: (i) whether the Notice of Arbitration and arbitral emails were in fact received in ADC's generic email addresses; and (ii) if so whether anyone at ADC actually read them. AASTAR's Singaporean lawyers (unlike in Bernuth) did not request a 'read receipt' with the email attaching the Notice of Arbitration, nor did GAFTA with later arbitral emails.
"There are moreover particular problems associated with electronic service, especially where it is sought to be effected on a solicitor. A…solicitor's office must be properly set up to receive formal electronic communications such as claim forms. As the Law Society's Practice Guidance on electronic mail (May 2000) points out, 'e-mail presents new problems, because it can arrive unperceived by other members of staff'. The volume of e-mails and other electronic communications received by even a small firm may be very great. They will be of unequal importance. There must be arrangements in place to ensure that the arrival of electronic communications is monitored, that communications constituting formal steps in current litigation are identified, and their contents
"…should simply ignore them, pending the outcome of the enforcement proceedings. [If] it were granted, we would have the opportunity to challenge the decision in a timely manner, but that no action was possible at this stage. We therefore chose to ignore the documents in question and take no action, in accordance with what I was told was our right under Ivorian law'.
"The grounds on which these applications are made are set out in detail in the first witness statement of Mr Abu-Manneh. In summary:
GROUND 1 - Sections 67 and 72: Lack of jurisdiction
6.1 the Tribunal in the arbitration did not have jurisdiction over the Claimant in these proceedings;
6.2 that is because the Tribunal was not properly constituted in that the procedure provided for in the GAFTA Rules was not followed;
6.3 the Defendant never properly served such a notice on the Claimant, in accordance with Rule 3.1(a) of the GAFTA Rules;
6.4 as such, GAFTA's appointment of a sole arbitrator pursuant to Rule 3.1(c) of the GAFTA rules was improper, as GAFTA's
obligation to appoint an arbitrator under Rule 3.1(c) was never triggered; 6.5 further or alternatively, the Claimant seeks a declaration from the Court pursuant to s.72(1)(b) of the AA 1996 that the Tribunal was not properly constituted.
GROUND 2 - Section 68: Procedural irregularities
7.1 the Tribunal's and GAFTA's conduct in the proceedings constitutes a serious procedural irregularity within the meaning of sections 68(2)(a), (c) and (e). This is because:
7.2 the Tribunal's use of two generic email addresses for purposes of "notifying" the Claimant was a failure to comply with its obligation to act fairly and impartially as between the parties;
7.3 it was additionally a failure to give each party a reasonable opportunity of putting its case and dealing with that of its opponent in accordance with its duty under s.33(1)(a) of the AA 1996;
7.4 the Tribunal's finding that mere service on GAFTA should mean that documents "were correctly served upon both parties was a failure to conduct the proceedings in accordance with the procedure agreed by the parties, because service did not occur in accordance with the GAFTA Rules or the underlying contracts; and
7.5 GAFTA's exercise of its power to appoint an arbitrator under Rule 3.1(c) of the GAFTA Rules exceeded its powers for the reasons given above in GROUND 1.
GROUND 3 - Section 70(3) and CPR 62.9(1): Extension of time…
8.1 the Claimant was notified of the Award on 30 July 2024 and filed the arbitration claim form on 27 August 2024, within the 28-day time limit set out in section 70(3) of the AA 1996. If the Court takes the view that the time limit is properly measured from an earlier date, the Claimant should be granted an extension of time to challenge the Award pursuant to CPR 62.9(3). That is because: (a) the Claimant did not have notice of the Award until long after 21 February 2024; (b) when it received proper notice of the Award it acted promptly to challenge it both in Cote d'Ivoire and in England (within 28 days of receipt); and (c) there is a real risk of substantial and irremediable injustice if the Award is permitted to go unchallenged by the Claimant in circumstances where this arbitration has concluded with a substantial damages award in the absence of the Claimant, and in circumstances in which the Claimant has substantive defences."
Statutory Framework of the Arbitration Act 1996 ('AA') and the s.72(1) point
"72 Saving for rights of person who takes no part in proceedings.
(1) A person alleged to be a party to arbitral proceedings but who takes no part in the proceedings may question (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, or (c) what matters have been submitted to arbitration in accordance with the arbitration agreement, by proceedings in the court for a declaration or injunction or other appropriate relief.
(2) He also has the same right as a party to the arbitral proceedings to challenge an award (a) by an application under section 67 on the ground of lack of substantive jurisdiction in relation to him, or (b) by an application under section 68 on the ground of serious irregularity within the meaning of that section affecting him; and section 70(2) (duty to exhaust arbitral procedures) does not apply in his case."
I have used those italics to highlight three preliminary observations about s.72:
a. As is clear from the heading of s.72 AA and the start of s.72(1), s.72 only applies to 'non-participants' in an arbitration (as I shall call them) like ADC here, not to active parties in that. s.72 AA gives two different rights to non-participants, reflected in the phrase 'he also' which starts s.72(2).
b. s.72(1) AA is a 'free-standing' right for a non-participant by proceedings for injunctive, declaratory or other relief, to question the three issues listed, which are the same as those in s.30(1) AA, which by s.82 is the definition throughout Part I AA of the phrase 'substantive jurisdiction'.
c. By contrast s.72(2) AA is not free-standing but allows a 'non-participant' to exercise the same rights as a participant party to challenge an award under ss.67 and 68, but with the s.70(2) AA duty excluded in its case. Via s.82, s.67 also turns on the same criteria for 'substantive jurisdiction'.
"66.— Enforcement of the award.
(1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect….
(3) Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award. The right to raise such an objection may have been lost (see section 73)…..
[The 28-day time limit in s.70(3) applies to participants contesting jurisdiction under s.66(3) via s.67: Domb v Grunhut [2022] EWHC 491 (Ch)]:
67.— Challenging the award: substantive jurisdiction.
(1) A party to arbitral proceedings may apply to the court (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or (b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because [it] did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3)….
(3) On an application…the court may by order - (a) confirm the award, (b) vary the award, or (c) set aside the award in whole or in part."
68.— Challenging the award: serious irregularity.
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see s.73) and the right to apply is subject to the restrictions in ss.70(2) and (3).
(2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant (a) failure by the tribunal to comply with section 33 (general duty of tribunal); (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67); (c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties; (d) failure by the tribunal to deal with all the issues that were put to it; (e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers; (f) uncertainty or ambiguity as to the effect of the award; (g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy; (h) failure to comply with the requirements as to the form of the award; or (i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral [party]…
(3) If there is shown serious irregularity affecting the tribunal proceedings or…award, the court may (a) remit the award to the tribunal, in whole or in part, for reconsideration, (b) set the award aside in whole or in part, or (c) declare the award to be of no effect, in whole or in part. The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration…
69.— Appeal on point of law.
(1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (on notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings.
(2) An appeal shall not be brought under this section except— (a) with the agreement of all the other parties to the proceedings, or (b) with the leave of the court. The right to appeal is also subject to the restrictions in section 70(2) and (3)….
(7) On an appeal under this section the court may… (a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court's determination, or (d) set aside the award in whole or in part….[with a similar proviso as s.68(3) AA]…"
[N.B. s.71 explains consequential effects of variations or setting aside of awards].
"70.— Challenge or appeal: supplementary provisions
(1) The following provisions apply to an application or appeal under section 67, 68 or 69.
(2) An application or appeal may not be brought if the applicant or appellant has not first exhausted (a) any available arbitral process of appeal or review, and (b) any available recourse under section 57 (correction of award or additional award).
(3) Any application or appeal must be brought within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process…."
"Where any provision of this Part requires an application or appeal to be made to the court within a specified time, the rules of court relating to the reckoning of periods, the extending or abridging of periods, and the consequences of not taking a step within the period prescribed by the rules, apply in relation to that requirement."
The relevant 'rule of court' to s.70(3) and s.80(5) AA is CPR 62.9, stating:
"(1) The court may vary the period of 28 days fixed by section 70(3) of the 1996 Act for – (a) challenging the award under section 67 or 68 of the Act; and (b) appealing against an award under s.69 of the Act.
(2) An application for an order under paragraph (1) may be made without notice being served on any other party before the period of 28 days expires.
(3) After the period of 28 days has expired (a) an application for an order extending time under paragraph (1) must (i) be made in the arbitration claim form; and (ii) state the grounds on which the application is made; (b) any defendant may file written evidence opposing the extension of time within 7 days after service of the arbitration claim form; and (c) if the court extends the period of 28 days, each defendant's time for acknowledging service and serving evidence shall start to run as if the arbitration claim form had been served on the date when the court's order is served on that defendant."
(I discuss later some of the key case-law on ss.70(3), 80(5) and CPR 62.9).
34. Whilst it is reasonably settled that there is no specific time-limit for s.72(1) AA (because it does not rely on s.67-68, so s.70-71 do not apply to it either), it is hotly debated whether s.72(1) is limited to pre-award applications. On one hand, the learned authors of Russell on Arbitration at paras.7-152 and 8-063 suggest s.72(1) can and has been used to challenge arbitral awards for lack of substantive jurisdiction without time-limit, like the award procured by fraud set aside 2½ years later in Arab National Bank v El-Abdali [2005] 1 Lloyds Rep 541. On the other hand, the learned authors of Merkin and Flannery on the Arbitration Act 1996 at para 72.2.6 (who admit to having changed their minds), conclude s.72(1) is limited to pre-award applications. They point to the 'present tense' of s.72(1) - whether there 'is' (not 'was') a valid arbitration agreement, whether the tribunal 'is' properly constituted and whether matters 'have been submitted' to arbitration in accordance with the agreement all 'in fact suggest relief 'being granted during the currency of the arbitration'. They contrast what they call the 'past tense' of s.72(2): 'he also has the same right as a party…to challenge an award (a) by an application under s.67'. They say:
"In summary, s.72(1) applies pre-award and any post-award relief seeking to attack an award has to be made under s.72(2)."
Mr Lamming not only adopted, but skilfully (if briefly) developed this point to argue s.72 was intentionally 'chronological': (1) is before an award (e.g. an anti-arbitration injunction); and (2) is after the award with a time-limit via s.70(3) but with an extension of time under s.80(5), so that there is no need for s.72(1) to apply to awards, as it would then overlap entirely with s.72(2).
"It seems to me that [Counsel for the participant] is on strong ground in saying that section 72(1) must have a more limited scope than section 67(3) at least to the extent that, if an applicant seeks, as Bernuth does, to set aside the award, he must proceed under section 67. The distinction between section 72(1) and section 72(2) appears to reflect the distinction between an application for a declaration under section 67(1)(b) and a challenge to an award under section 67(1)(a) with a consequent order under section 67(3). But the distinction between declaring an award to be of no effect because the tribunal did not have substantive jurisdiction and setting it aside would not appear to be major and it is not immediately apparent why an application under section 72(1) should be subject to no time limit, whereas an application under sections 67 and 72(2)(a) is subject to the time limit for an application under section 67 specified in section 70(3). Section 72(1) seems to be primarily intended to deal with the position at an interlocutory stage, when the court may be prepared to declare that an applicant is not bound by the arbitration agreement and to restrain the respondent from further continuance of the arbitration …[Counsel for the non-participant] submitted that s. 72(1) was the principal provision to be invoked if substantive jurisdiction was challenged and that s.72(2)(a) was inserted as an abundance of caution."
I italicise those two passages, because neither go quite as far as Mr Lamming and the learned authors of Merkin and Flannery suggest. Clarke J in Bernuth at [58] said s.72(1) was 'primarily intended' to deal with interlocutory applications, but they go further and say it is limited to such applications. Clarke J did not say that s.72(1) could not in principle apply to awards at all, but rather (albeit 'at least') that it could not be used to set aside awards.
a. Firstly, he noted the pre-legislative 'DAC 1996 Report' which drafted the Arbitration Act 1996 said at para.295 (partly quoted below) about what became s.72 AA, that a person disputing arbitral jurisdiction should be entitled to 'ignore the arbitral process' but if they choose to participate, they should abide by time-limits etc. He suggested this balanced preventing delay and evasion of enforcement by participants, while retaining non-participants' rights to ignore an invalid arbitration.
b. Secondly, he added this same balance was also struck in s.1 AA:
"The provisions of this Part are founded on the following principles, and shall be construed accordingly: (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) the parties should be free to agree how their disputes are resolved, subject only to.. safeguards …necessary in the public interest; (c) in matters governed by this Part the court should not intervene except as provided by this Part."
c. Thirdly, he suggested this was also reflected in restrictions on appeal and time-limits for participants for challenges under ss.67-68 AA, by comparison to the unrestricted appeals under s.66 and s.72(1) AA.
d. Fourthly, Walker J concluded s.72(2) enabled non-participants to use participant remedies in ss.67-68, but without losing rights to object under s.73 that did not apply to non-participants. (But at [84], he also felt it was fair to subject non-participants to time-limits when they chose to use participant remedies under s.72(2) via ss.67-68).
e. Finally, at [82(4)], Walker J explained that s.72(2) did not apply to appeals on a point of law under s.69 AA.
Therefore, Walker J reached his essential conclusion at [83]:
"These considerations (which do not appear to have been expressly advanced in argument in Bernuth) lead me to conclude that the provisions in s.72 should be construed with at least a degree of generosity to those who have disputed the tribunal's jurisdiction and have taken no part in the arbitral proceedings. In particular, it does not seem to me there is any necessity to confine s 72(1) to the position before the issue of an award. The primary remedies contemplated by s.72(1) are a declaration or an injunction. Both these remedies are discretionary, and if there are circumstances in any particular case which would make it inappropriate to grant a declaration or injunction, the court will consider those…before concluding whether the remedy should be granted."
"A person alleged to be a party to arbitral proceedings but who takes no part in the proceedings may question (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, or (c) what matters have been submitted to arbitration…by proceedings in the court for a declaration or injunction or other appropriate relief."
I accept the present tense of (b) 'whether the tribunal is properly constituted' does hint at current arbitral proceedings. However, whether there 'is' a valid arbitration agreement and what matters 'have been' submitted to arbitration could equally be said after an award, but no-one says their temporal scope is different. Three cases in Merkin v Flannery not cited to me shed a little more light on the language of s.72(1). Broda Agro v Toefler [2010] 2 CLC 621 (CA) held a party 'takes part' in arbitration – so is excluded from s.72 - even if they only partly participate. So, logically, there may remain doubt whether they have 'taken no part in proceedings' until afterwards (see Tomlinson J in Peterson Farms v C&M [2004] Lloyds Rep 614 at [23]). But equally, it is clear from Fiona Trust v Privalov [2006] Bus LR 686 (CA) that s.72(1) is available pre-award. This suggests Parliament did not intend (see R(O) at [31]) s.72(1)'s present tense to limit it to pre-award (e.g. by saying: 'a person who is taking no part'). But surely it would not hint with ambiguous tenses, but simply use express words e.g. 'may question before the arbitral award'. Or as in s.72(2), Parliament could have adapted other AA rights for non-participants e.g. the power under s.32 AA for a party during arbitration to apply to court on 'any question as to the substantive jurisdiction of the tribunal'. (If s.72(1) AA is only pre-award, one might have expected to find it adjacent to s.32, not adjacent to ss.66-71 related to awards). In my view, the language of s.72(1) is not only available for pre-award applications, but is also open to applications after awards, or is at the very least ambiguous about that.
"He also has the same right as a party to the arbitral proceedings to challenge an award (a) by an application under s.67 on the ground of lack of substantive jurisdiction in relation to him…"
As Walker J said in The Prestige (No.1) at [82(3)], 'he' at the start of s.72(2) is the same 'person' referred to in s.72(1). Whilst the learned authors of Merkin and Flannery suggest s.72(2) is in the past tense, to my mind it too is in the present tense, in speaking of the rights that non-participant person 'has'. Moreover, s.72(2) does not say 'he can only challenge an award' under ss.67 or 68, but rather he also has the same right as a participant to challenge an award under ss.67-68, implying those are additional rights to challenge awards – i.e. additional to the right in s.72(1). So, s.72(2) actually implies that s.72(1) is open to post-award applications questioning substantive jurisdiction.
a. The main distinction I would highlight between s.72(1) and s.72(2)(a) is not remedies (but see below), but their respective 'targets'. Whilst s.72(2) is 'targeted' at arbitral awards only, s.72(1) is 'targeted' at the whole arbitration, including the award. This means s.72(1) is more flexible and can be used earlier than s.72(2)(a): there is no time-limit in s.72(1) as there is no point of the process from which time 'runs'. Moreover, as s.72(1) is discretionary (The Prestige (No.1)), relief can be refused due to delay causing prejudice as part of a more flexible discretion than CPR 62.9. In short, s.72(1) is a 'safety valve': a free-standing, flexible remedy for non-participants to 'question' not arbitral awards as such, but the substantive jurisdiction of the arbitral process 'by court proceedings for a declaration or injunction or other appropriate relief'. The 'relief' 'appropriate' under s.72(1) (if any) after an award will be very different to what is 'appropriate' before it. For example, the concern in Privalov that s.72(1) must not pre-empt jurisdictional rulings by arbitrators simply does not apply post-award.
b. Moreover, there is also a distinction in remedies. s.67 AA enables the award in whole or part to be varied or set-aside (s.67(3)) or declared of no effect (s.67(1)(b)). But s.72(1) is again more flexible. Unlike s.67, s.72(1) permits injunctions on substantive jurisdiction otherwise unavailable to a non-participant post-award (s.1(c) AA excludes the High Court's inherent jurisdiction on injunctions). s.72(1) AA also enables a more calibrated and 'bespoke' declaration, e.g. one uniquely relevant to enforcement proceedings abroad. So here, ADC pleads that it seeks 'a declaration pursuant to s.72(1)(b) AA that the Tribunal was not properly constituted'. Whilst an English lawyer may see little difference with a 'no effect declaration' under s.67(1)(b), it is one step further away from setting aside an award Clarke J analysed in Bernuth. Indeed, as I will discuss, I have no admissible evidence of Ivorian law: this limited declaration here may well be enough to resist enforcement there. In truth, the 'Venn diagram' overlap in remedies between s.72(1) and s.72(2)(a)/67 is limited to use of s.72(1) to vary or set-aside awards or for declarations to that effect as discussed in Bernuth and Sino (which I call 's.67 relief'). To avoid an overlap in 's.67 relief' as s.72(1) has no time limit by limiting it to pre-award applications (that Clarke J was careful not to do) throws the baby out with the bathwater.
c. Indeed, if Clarke J was right in Bernuth to say s.72(1) cannot be used for 's.67 relief', there is no overlap. But even if Eder J was right in Sino that 's.67 relief' is available under s.72(1), it is still a high hurdle to show it is 'appropriate' out of time. As discussed below, Sino was an unusual case where a 'front company' was used; and El-Abdali where s.67 relief was granted was 'an overwhelming case of fraud'. In my view, it will take very unusual circumstances to persuade a Court 's.67 relief' out of time under s.72(1) would be 'appropriate relief'. But as I have said, ADC here does not seek s.67 relief under s.72(1).
So, the 'statutory setting' of s.72(1) suggests Parliament intended it to be a flexible remedy for non-participants to question substantive jurisdiction, before or after an award without a time-limit, but for the High Court to police its use - having regard to factors like delay and overlap in relief.
a. Firstly, even if the language of s.72(1) literally is limited to pre-award applications (which I do not accept) it should be construed purposively to encompass post-award applications to achieve its purpose detailed by the drafters of the AA in the DAC 1996 Report (a relevant 'external aid' to purpose: R(O) at [30]) at para.295, which I quote as is material:
"A person who disputes that an arbitral tribunal has jurisdiction… must be entitled, if he wishes, simply to ignore the arbitral process... [But] those who do decide to take part in the arbitral proceedings. can fairly and properly be required to abide by the time limits etc."
A similar view of s.72 was taken by Stanley Burnton LJ at [37] of Broda Agro where he said that someone who contends they are not bound by an arbitration agreement is entitled to ignore an arbitration. To limit s.72(1) to challenges during the arbitral process would undermine its purpose stated by its drafters to enable a non-participant to ignore - rather than having to intervene in or restrain - arbitration.
b. Secondly, I see no inconsistency between interpreting s.72(1) as applying both pre-and post-award without time-limit and the changes to the 1996 Act in the Arbitration Act 2025 (even if not strictly 'in pari materia'). The 2025 Act makes significant changes on substantive jurisdiction (e.g. tidying-up remedies under s.67 and time-limits under s.70), but without altering s.72(1). That suggests despite the debate in Bernuth and The Prestige (No.1), Parliament sees no need to clarify s.72(1) to limit it to pre-award applications, or at least, nothing in the 2025 Act undermines the interpretation in 'The Prestige (No.1)' which is a tenable interpretation and workable in practice: see Wathen-Fayed v SSHCLG [2025] 1 WLR 3693 (SC) at [62]-[66].
c. Finally, I recognise the balance in s.72(1) and s.1 AA discussed in The Prestige (No.1) between speedy and effective arbitration and the rights of non-participants to challenge jurisdiction; and between fairness and finality in s.70(3) in time-limits discussed by Mance LJ (as he was) in The Maria K [2003] 2 CLC 1 (CA) at [42] (referred to in several cases on s.70(3) and the Kalmneft factors). Nevertheless, it is a fundamental interpretative principle (discussed in R(O) at [33]-[35]) that even primary legislation should not interpreted as excluding the right of Access to Justice except by clear language; and indeed limiting it no further than justified by the provision's objectives. Here, the language of s.72(1) does not clearly restrict non-participants' access to Court for relief after an award additional to that in s.72(2), so s.72(1) should not be interpreted as being limited to pre-award applications.
So, in my own view – although I stress it is not the final determination in this case - s.72(1) does apply to post-award applications without time-limit. This is relevant to the extension application for ADC's s.72(2) claims because it may have an alternative remedy under s.72(1). However, if I refuse ADC's extension application for its ss.67-68 challenges, whether the s.72(1) remedy is still open to ADC given its delay and all the other circumstances (including ADC's alleged concession, which is disputed, although either way it did not prevent me from considering the s.72(1) point) will be for another judge to decide.
E-Mail Service of Arbitral Proceedings
"[I]f the proceedings were not validly served so…Bernuth had not had a reasonable opportunity of putting their case, they would have suffered a substantial injustice [So, it would not] be just to allow the award to stand."
"14 Commencement of arbitral proceedings
…(4) Where the arbitrator or arbitrators are to be appointed by the parties, arbitral proceedings are commenced in respect of a matter when one party serves on the other party or parties notice in writing requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator in respect of that matter.
16 Procedure for appointment of arbitrators
…(3) If the tribunal is to consist of a sole arbitrator, the parties shall jointly appoint the arbitrator not later than 28 days after service of a request in writing by either party to do so.…
(4) If the tribunal is to consist of two arbitrators, each party shall appoint one arbitrator not later than 14 days after service of a request in writing...
17 Power in case of default to appoint sole arbitrator
(1) Unless the parties otherwise agree, where each of two parties to an arbitration agreement is to appoint an arbitrator and one party ('the party in default') refuses to do so, or fails to do so within the time specified, the other party, having duly appointed his arbitrator, may give notice in writing to the party in default that he proposes to appoint his arbitrator to act as sole arbitrator….
76 Service of notices etc
(1) The parties are free to agree on the manner of service of any notice or other document required to be given or served in pursuance of the arbitration agreement or for the purposes of the arbitral proceedings.
(2) If or to the extent that there is no such agreement the following provisions apply.
(3) A notice or other document may be served on a person by any effective means.
(4) If a notice or other document is addressed, pre-paid and delivered by post….(b) where the addressee is a body corporate, to the body's registered or principal office, it shall be treated as effectively served."
AASTAR says the Notice of Arbitration emailed on 20th July 2023 was both a notice of commencement under s.14(4) AA and a nomination of arbitrator under s.16(3), but that as ADC failed to respond, a sole arbitrator was appointed under s.17(1). There is no dispute in this case about any of that. The dispute is whether the use of ADC's generic email was effective service under s.76 AA.
"28. I do not regard the provisions of CPR Part 6 as an appropriate benchmark by which to judge whether or not service by e-mail is effective in the context of an arbitration. The [CPR] cater for litigants of all kinds from major corporations represented by the most accomplished..solicitors to [those] represented by more modest firms and those…not represented at all. By contrast arbitrations are usually conducted by businessmen represented by, or with ready access to, lawyers. s.76(4), when providing that a notice could be served on a person by any effective means, was in my judgment purposely wide. It contemplates that any means of service will suffice provided that it is a recognised means of communication effective to deliver the document to the party to whom it is sent at his address for the purpose of that means of communication (e.g. post, fax or e-mail). There is no reason why, in this context, delivery of a document by e-mail – a method habitually used by businessmen, lawyers and civil servants – should be regarded as essentially different from communication by post, fax or telex.
29. That is not to say that clicking on the 'send' icon automatically amounts to good service. The e-mail must, of course, be despatched to what is, in fact, the e-mail address of the intended recipient. It must not be rejected by the system. If the sender does not require confirmation of receipt, he may not be able to show that receipt has occurred. There may be circumstances where, for instance, there are several e-mail addresses for a number of different divisions of the same company, possibly in different countries, where despatch to a particular e-mail address is not effective service.
30. But in the present case none of those difficulties arise. The e-mail[s]… were received at an e-mail address that was held out to the world as, and so far as the evidence shows, the only e-mail address of Bernuth. Someone looked at the e-mails on receipt and, apparently, decided that they could be ignored, without making any contact with the sender. The position is, to my mind, no different to the receipt at a company's office of a letter or telex which, for whatever reason, someone at the company decides to discard. In both cases service has effectively been made, and the document received will, in the first instance, be dealt with by a clerical officer….
34. In short, I do not regard service of the…notice [of arbitration] by e-mail as ineffective because, when it was received, a particular employee did not think that a serious legal matter would be sent to that address. That e-mail and those that followed it, are plain and straightforward in their terms. They bear none of the hallmarks of 'spam'. On the contrary they called for serious attention….[The first email] purported to initiate arbitration proceedings by calling for agreement as to an arbitrator. I should be surprised if much junk e-mail purports to do that or to emanate, as later e-mails did, from an LMAA arbitrator. If the e-mails never reached the relevant managerial and legal staff, that is an internal failing which does not affect validity of service and for which Bernuth has only itself to blame. Having put info@bernuth.com into the current Lloyd's Maritime Directory as their only e-mail address, they can scarcely be surprised to find an e-mail inviting them to agree to appointment of an arbitrator in a maritime matter was sent to that address.
35. I do not accept that, in an arbitration context, in order for service to be effective, it is essential that the e-mail address at which service is purportedly made has been notified to the serving party as an address to be used in the context of the relevant dispute. Section 76 does not say as much and there is no basis upon which that can be implied."
"Although the purpose of service is to bring the contents of the claim form to the attention of the defendant, the manner in which this is done is also important. Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs ……. [I]t has never been enough that the defendant should be aware of the contents of an originating document such as a claim form. Otherwise, any unauthorised mode of service would be acceptable, notwithstanding that it fulfilled none of the other purposes of serving originating process."
Clarke J's differentiation of the default service rules as including email under s.76(3) AA for arbitration from email service under CPR PD6A para 4.1 is entirely consistent with Lord Sumption's analysis in Barton. It is not that arbitral claims to court are exempt from the CPR: The Maria K [2003] 2 CLC 1 (CA) held that faxed service of a claim form challenging an arbitral award was invalid for similar breach of the predecessor of CPR PD6A para 4.1. Rather it is that in Bernuth at [28], Clarke J simply made the point that the 'bright-line rule' on service of a notice of arbitration under s.76(3) AA in the commercial context of arbitration did not have to be the same as for service of a claim form in the 'one size fits all' CPR. That is (very respectfully) plainly right and no more violates Art.6 ECHR than the stricter rule under the CPR violated it in Barton.
"[E]ven where an employee or agent has a wide general authority to act on behalf of his employer/principal, [it] does not (without more) generally include an authority to accept service of a notice of arbitration."
Whilst the Court of Appeal did not disagree with that as a matter of principle, it disagreed on what Gross LJ also called at [47] a 'most unusual case' on the facts. More widely, Gross LJ re-iterated his own earlier observations at first instance in Lantic Sugar v Baffin [2010] 2 All ER (Comm) 1170 at [39]:
"s.76 was intended to operate more flexibly than the regime for service provided in respect of court proceedings by the CPR. So, by way of examples, notices commencing arbitration (ss.14 and 76 AA) should be interpreted broadly and flexibly rather than strictly or technically………. So too, s.76 is more flexible than the CPR as to mode or means of service …. But…even assuming there are differences between the issuing of claim forms and the service of notices [of arbitration]…[s]eparate corporate personality cannot simply be ignored…[N]othing in the Act, authority or principle exempts an arbitration claimant from serving a notice commencing arbitral proceedings on the correct party."
"25. There is a distinction…between an e-mail address which is a personal business address of an individual, and one which is generic. Individual e-mail addresses are readily recognisable as in the form name@domainname. By contrast businesses often have generic e-mail addresses which do not identify the name of the person who will receive the e-mail sent to that address [e.g.] Info@glencore.com…Where an individual e-mail address is used, the sender will reasonably expect the e-mail to be opened and read by the named individual. With a generic e-mail address, the sender will not, at least usually, know the identity of the person who will open and read the e-mail. [But] if the generic address has been promulgated by the organisation, whether on its website or otherwise, the sender can reasonably expect the person who opens the e-mail to be authorised internally to deal with its contents if the subject matter falls within the scope of the business activity for the purpose of which the generic e-mail address has been promulgated. A promulgated generic chartering department e-mail address gives rise to the legitimate expectation that communications relating to chartering operations sent to that address will come to the attention of a person …internally authorised to deal with them. This is true also of those who open post addressed to a company address. The company can be expected to ensure the letter or e-mail is opened by someone with internal responsibility for putting it in the hands of whoever needs to deal with it on behalf of the company, and if he fails to do so, that risk falls on the company.
26 An e-mail sent to an individual employee's e-mail address is different. It is being sent specifically to a named individual within the organisation. ….Whether it constitutes good service if directed to an individual's e-mail address must depend upon the particular role which the named individual plays or is held out as playing within the organisation."
Therefore, the principle in Bernuth that a respondent's generic email address can be 'effective means' of service under s.76(3) AA, even without prior written agreement to its use, is consistent with the principles of service in Barton and agency in Sino. However, on agency, Popplewell J in Glencore clarified Bernuth by saying the generic email address must have been 'promulgated' by the party to be served, 'on its website or otherwise' so 'the sender can reasonably expect the person who opens the email to be authorised internally to deal with it'. In Bernuth, the generic email had been 'promulgated', so service using it was valid.
a. On the first point, in articulating the legal principle of 'promulgation' in Glencore, Popplewell J specifically said that 'promulgation' could be done by a company's 'website or otherwise'. I entirely accept in the present case, there is no evidence of 'promulgation' by ADC on its website or in a trade directory as there was in Bernuth. But whether the use by ADC of both of its generic email addresses in the management of the various contracts between January 2022 and May 2023 with AASTAR was sufficient 'promulgation' is essentially a finely-balanced evidential issue for a trial. It is not like use of a personal email address of an employee not held out as authorised to accept service in Glencore itself. Therefore, 'promulgation' would in my view be 'arguable' for AASTAR but not 'strong' for it or ADC under Kalmneft factor (vi).
b. Similarly, I have already taken into account the absence of read receipts evidentially in saying I am unable to find as a fact the emails were received by ADC (though its evidence they were not received is weak but arguable), but that ADC's evidence that the emails were not opened or read is stronger. However, for service, it is the former that matters, not the latter. As Clarke J explained in Bernuth at [30], if a notice is received at an appropriate email address but misunderstood as spam, it has still been served, just like a claim form posted to a firm of solicitors which they accidentally dispose of. In my judgement, providing that a company has 'promulgated' their generic email in the way discussed in Glencore, it makes no difference if the 'accidental ignoring' is done 'automatically' by a spam filter rather than 'manually' by a human, as that is within the technological and practical control of the recipient and it is hardly burdensome to check the spam folder regularly. As Clarke J said in Bernuth at [34], if emails never reached relevant staff due to the company's own internal procedures (as Mr Lamming added, whether automated or not), the company only has itself to blame. So, with service, the absence of a read receipt is an evidential issue about whether service can be proved, not a legal one about whether it is valid. So, yet again, the point is simply 'arguable' but not 'strong' for ADC.
So, if the issue were simply service under s.76(3) AA as in Bernuth, as discussed, this would turn on promulgation and receipt and be simply 'arguable' but not 'strong' under Kalmneft factor (vi). But Mr Wassouf says it is 'strong' for ADC as the parties agreed postal service under s.76(1), either in contracts or under the GAFTA Rules. I will consider the latter argument first.
"1.2: The juridical seat of the arbitration shall be and is hereby designated pursuant to section 4 of the Arbitration Act 1996 as, England…
3.1(a) If he requires the appointment of a sole arbitrator, the claimant shall, before expiry of the time limit… serve a notice on the respondent, seeking his agreement to the appointment of a sole arbitrator by Gafta.
3.1(c)…Where…the respondent has not responded to the claimant's notice under 3.1(a) above… Gafta shall appoint an arbitrator…
4.4: All submissions and evidence shall be served by sending them to the other party, with copies to Gafta…
21.1: All notices to be served on the parties pursuant to these Rules shall be served by letter, fax, or E-mail or other electronic means. For the purposes of time limits…date of despatch shall, unless otherwise stated, be deemed to be the date of service. Service on…agents named in the contract shall be deemed proper service under these Rules. So far as concerns such notices, this Rule over-rides any other provisions of the contract."
In LFT Agroneftiprodukt v Ameropa [2021] EWHC 3474 (Comm) (to which I was not referred asit related to a point not presently in issue – the form of a notice of arbitration), Sir William Blair described para 3.1(a) GAFTA Rules No.125 as 'reflecting the language' of s.14(4) AA on notices of arbitration. Just as such notices should be interpreted commercially, the GAFTA Rules themselves should be interpreted in the context of the AA, especially as the GAFTA Rules specify London as the arbitral seat. (I return to this issue at the end of this judgment, given the arbitration clauses in the contracts in the present case assumed the seat would be Singapore – also specified by the exclusive jurisdiction clause - but the Arbitrator's jurisdictional decision that the arbitral seat was London is not presently challenged by ADC). As with Rule 3.1(a) and s.14(4) AA in Ameriopa, Rule 21.1 is consistent with s.76(3) AA in making it clear that email service is valid under GAFTA Rules. Indeed Rule 21.1 does not apparently even require the same 'promulgation' of an email address for service as s.76(3) AA does in the sense in Bernuth and Glencore. That said, the GAFTA Rules do not entirely mirror the AA: GAFTA Rule 3.1(c) displaces s.17(1) AA and dispensed with the need for AASTAR to nominate its own arbitrator given ADC's failure to respond; as that is done by GAFTA itself, as it did on 6th September 2023. Moreover, GAFTA Rule 4.4 stated from that point onwards, all communications were via GAFTA. Whilst ADC initially suggested there was invalid service of the Notice of Arbitration because it was served by GAFTA not AASTAR as s.14(4) AA required, as I have discussed, this was ADC's mistake: GAFTA did not email the Notice of Arbitration, AASTAR's lawyers did and Mr Wassouf did not really pursue this. Whilst I cannot at this stage dismiss it, ADC's argument that email service breached GAFTA Rules is weak.
Conclusions on the Extension Application
General Principles on Extensions of Time for Arbitral Challenges
"70(3) Any application…must be brought within 28 days of…the award.
80(5) Where any provision of this Part requires an application or appeal to be made to the court within a specified time, the rules of court relating to the extending or abridging of periods… apply…."
The relevant 'rule of court' for s.70(3) and s.80(5) AA is CPR 62.9(1), stating:
"The court may vary the period of 28 days fixed by section 70(3) of the 1996 Act for – (a) challenging the award under section 67 or 68 of the Act; and (b) appealing against an award under section 69 of the Act."
I also note the Commercial Court Guide (2022) para. O9.2 (which applies in arbitration claims in the Circuit Commercial Court under its Guide at para L1.5) states any application for extension of time will require 'cogent reasons'.
"Accordingly, although each case turns on its own facts, the following considerations are…likely to be material: (i) the length of the delay; (ii) whether, in permitting the time limit to expire and the subsequent delay to occur, the party was acting reasonably in all the circumstances; (iii) whether the respondent to the application or the arbitrator caused or contributed to the delay; (iv) whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed; (v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration or the costs incurred in respect of the determination of the application by the court might now have; (vi) the strength of the application; and (vii) whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined."
However, prior to dismissing the application, at [60] of Kalmneft, Colman J did stress that the relative weight to be given to the factors in a given case was influenced by the international arbitration context he had discussed at [57]-[58]:
"57. In approaching the identification of the applicable criteria…at least in international arbitrations, English arbitration is probably the most widely chosen jurisdiction of all. It is chosen because of the ready availability of highly skilled and experienced arbitrators operating under a well-defined regime of legal and procedural principles in what is often a neutral forum. Supervisory intervention by the courts is minimal and well defined and the opportunities for a respondent with a weak case to delay the making of an award or to interfere with its status of finality are very restricted. Accordingly, much weight has to be attached to the avoidance of delay at all stages of an arbitration, both before and after an interim or final award. If the English courts were seen by foreign commercial institutions to be over-indulgent in the face of unjustifiable non-compliance with time limits, those institutions might well be deterred from using references to English arbitration in their contracts. This is a distinct public policy factor which has to be given due weight in the discretionary balance.
58. On the other hand, it has to be recognised that because of the extremely wide international nature of the market for English arbitration many of the parties may be located in remote jurisdictions and may have little or no previous experience of international or English arbitration. When these relatively unsophisticated parties find themselves involved in..an arbitration it is only to be expected they move somewhat more tentatively than would an international trading house well experienced in this field. It would therefore be wrong to fail to make at least some allowance for this factor in evaluating the element of fault in failing to comply with time limits."
"[A]s to factor (vii), general considerations of fairness…they must ….always be viewed in the particular context that Parliament and the courts have repeatedly emphasised the importance of finality and time limits for any court intervention in the arbitration process."
Moreover, as Colman J said in Kalmneft at [59], his seven factors are not necessarily exhaustive. One additional factor is the 'Dallah principle' that a party objecting to arbitral jurisdiction is entitled to refuse to participate until there is an application to enforce. In The Prestige (No.1) at [79]-[81], Walker J said it was so fundamental that it justified delay between promulgation of an award and enforcement (and delay after enforcement was down to Spanish law).
Kalmneft Factor (vi): The Strength of the Challenges
"…On an application for an extension of time, the court will not normally conduct a substantial investigation into the merits of the challenge...since to do so would defeat the purposes of the Act. However, if the court can see on the material before it that the challenge involves an intrinsically weak case, it will count against the application for an extension, whilst an apparently strong case will assist the application. Unless the challenge can be seen to be either strong or intrinsically weak on a brief perusal of the grounds, this will not be a factor which is treated as of weight in either direction on the application for an extension of time. If it can readily be seen to be either strong or weak, that is a relevant factor; but it is not a primary factor, because the court is only able to form a provisional view of the merits, a view which might not be confirmed by a full investigation of the challenge, with the benefit of the argument which would take place at the hearing of the application itself if an extension of time were granted."
As I noted above, a similar point was made about evidential conflicts in Brown.
a. Following Bernuth and Glencore, the two legal and evidential issues for the 'jurisdiction/service challenges' are (i) whether ADC 'promulgated' its generic email addresses 'on its website or otherwise' so 'the sender can reasonably expect the person opening the email to be authorised internally to deal with it'; and (ii) whether the Notice of Arbitration was 'received' in ADC's generic email addresses, even if not opened or read. These two issues basically determine: 'jurisdiction' under s.67/s.72(1) (paras.6.1, 6.2, and 6.5 Claim Form), 'service' under s.67-68 (paras 6.3, 7.4 of it); and as appointment of the Arbitrator requires 'service' under s.14(4)/s.17(1) AA and GAFTA Rule 3.1(c), its validity (paras 6.4, 7.5).
b. On the 'promulgation' issue, whilst I have rejected Mr Wassouf's submissions that use of ADC's generic email addresses were in principle invalid service, Mr Lamming also goes slightly too far in saying this case is simply a 'weaker rehashing' of Bernuth. After all, as Mr Wassouf observed, there is no evidence here like in Bernuth of 'promulgation' of emails in a website or trade directory. But equally, as Mr Lamming said, also unlike Bernuth, here ADC repeatedly used its generic emails before the arbitration started (not only for the management of the contract throughout 2022, but also for the start of the dispute in 2022-2023). Therefore, on balance, while ADC's case on (non-)promulgation is not 'weak' for Kalmneft factor (vi), it is not 'strong' either. In my view, it is fair to describe ADC's case on (non-)promulgation as 'arguable'.
c. On the 'receipt' issue, as I said, I cannot find as a fact that the Notice of Arbitration (or the later GAFTA arbitral emails) were not 'received' in ADC's generic email addresses and indeed the absence of read receipts leaves an evidential gap (although is not a legal barrier to receipt as I said). There is also the evidence of M Niangadou that the relevant emails were not received. However, as Mr Lamming pointed out, there are real problems with that evidence which is limited: not specifying what he searched (e.g. whether junk or spam folders as well as inboxes) or when. But then again, there is the possibility of better evidence at trial, such as expert computer forensic evidence which might show (non-)receipt. Overall, once again, whilst I do not accept ADC's case on (non-)receipt is 'weak', nor is it 'strong' but I am prepared to accept it is 'arguable'.
For those reasons, in my own judgement, whilst both Counsel have forcefully argued each way about the intrinsic strength of ADC's 'jurisdiction/service' challenges, they have largely cancelled each other out: I consider those challenges are 'arguable'. So, they only count only modestly in favour of extension, rather than being neutral as in Brown. It follows that ADC's s.72(1) application, which is not reliant on a time limit, is also no more than 'arguable' on its merits (but has extra hurdles e.g. the effect of ADC's concession).
"7.2 the Tribunal's use of two generic email addresses for purposes of 'notifying' the Claimant was a failure to comply with its obligation to act fairly and impartially as between the parties'; 7.3 it was additionally a failure to give each party a reasonable opportunity of putting its case and dealing with that of its opponent in accordance with s.33(1)(a) AA 1996."
This is not a pleaded complaint about jurisdiction or service, but under s.68(2)(a) AA whether GAFTA failed to comply with its duty under s.33(1) to:
"(a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined."
In Hays, Henshaw J said at [79]-[80] fairness under s.33 AA meant arbitrators must give parties a fair opportunity to deal with an issue, though Popplewell J in Terna at [85(4)-(5)] distinguished between not giving a party that opportunity and a party failing to take that opportunity. (I bore that elemental principle of fairness in mind on the s.72(1) point, which I raised and gave Counsel the opportunity to argue, but I have not finally decided it: only that it is 'arguable').
Kalmneft Factor (i): The Length of the Delay
"62. Popplewell J in Terna…[at [27(i) stated]: 's. 70(3) of the Act requires challenges to an award under sections 67 and 68 to be brought within 28 days. This relatively short period of time reflects the principle of speedy finality which underpins the Act, and which is enshrined in s.1(a) ……… The [applicant needs to] show the interests of justice require an exceptional departure from the timetable laid down by the Act. Any significant delay beyond 28 days is to be regarded as inimical to the policy of the Act'….
64…(i) The facts of the individual case must be 'considered with care. There is no principle of law that any particular length of delay either cannot ever be unjustified, at one extreme, or will always be unjustified at the other extreme' (Minister of Finance [127])….. (ii) The length of delay must be judged against the yardstick of the 28 days provided for in the Act. Therefore, a delay measured even in days is significant, and a delay measured in many weeks or in months is substantial: (Terna [28])."
Henshaw J also noted that whilst delays of even less than 28 days had been treated as significant and substantial, extensions of 6 weeks had been granted in some cases; and in Minister of Finance itself, one of 5½ months' culpable delay was granted after 11 months of non-culpable delay. Indeed, in P&ID, an extension was granted of 4½ years from the initial award and almost 3 years from the final award, though in that extraordinary case, there was a strong prima facie of fraudulent conduct of the arbitration, even bribery of the innocent party's own legal team. The real point is simply that there is no maximum extension.
a. Sub-period 1 is between the time-limit expiry on 21st March 2024 and when M Niangadou accepts first receiving it informally from the bailiff as part of the enforcement proceedings on 8th July 2024. That is a period of 109 days' or over 3 months' delay and is clearly in itself substantial.
b. Sub-period 2 is between 8th July and formal service of the Award on 30th July 2024, a period of 22 days: significant, but less than the 28-day limit.
c. Sub-period 3 is between 30th July and issue of the claim on 27th August, which is exactly 28 days: again significant and the same as the time-limit.
ADC originally argued time only started to run from 30th July so the claim was in time, but later conceded the time-limit expired on 21st March 2024 and ADC needed an extension of 159 days (including the application under s.72(1) AA, though in my view, it does not apply to s.72(1) challenges). However, despite that, at the hearing, Mr Lamming conceded he did not criticise sub-period 3. So, I will focus on sub-periods 1 and 2: a period of 131 days: nearly five times the 28-day time limit, but less than Minister of Finance and far shorter than P&ID.
Kalmneft Factors (ii) and (iii): Whether ADC acted reasonably in all the circumstances and/or whether AASTAR or GAFTA contributed to the delay and the Dallah Principle
"…the importance of adducing evidence [explaining delay] rather than relying only on submissions….Whilst a delay occasioned by lack of awareness of the time limit, or by 'laxity, incompetence or honest mistake' can hardly be described as 'good' reasons for delay, they will weigh less against an applicant than 'a deliberate informed choice'."
a. Mr Wassouf mounted detailed and trenchant criticisms of AASTAR for using ADC's generic email addresses to start the arbitration and of GAFTA in then using those emails during it. However, I have already largely dealt with those criticisms: email service can be valid in principle and Mr Wassouf's criticisms assume what ADC needs to prove on its jurisdiction / service challenges: that it did not promulgate the generic emails or did not receive in them either the Notice of Arbitration from AASTAR's lawyers or GAFTA's arbitral emails. ADC's case on these issues (and so these criticisms) are no more than arguable. If email service was valid, I do not see how AASTAR can be criticised for not also posting the Notice of Arbitration half-way across the world. But on sub-period 1, AASTAR cannot realistically be criticised for failing to chase up with ADC by letter or phone between February and July 2024 payment of the Award. After all, AASTAR had to prepare for enforcement of the Award in a jurisdiction not only foreign to itself, but also to the arbitral seat (Singapore or England). Whilst one can say AASTAR's delay of five months between the Award in February 2024 and the enforcement in early July 2024 'causally contributed' to ADC's delay, it cannot realistically be said AASTAR was unreasonable in taking its time, or not chasing up ADC for payment, before AASTAR knew where it stood on Ivorian enforcement. Moreover, I cannot see how there can be any distinct criticism of GAFTA in sub-period 1, as it had already determined the Award and was functus officio. Therefore, Kalmneft factor (iii) in sub-period 1 does not favour an extension in time-limit.
b. Indeed, Kalmneft factor (ii) in sub-period 1 points modestly against extension. ADC's reasonableness of its contended ignorance of the arbitration is the mirror image of my comment on AASTAR. ADC has arguable points on (non-)promulgation and (non) receipt, but Mr Lamming's submissions on that assumed the absence of what ADC might prove. He was on surer ground though in focussing on ADC's reasonableness and its delay in sub-period 1. After all, the issue on Kalmneft factor (ii), unlike factor (vi), is not whether ADC can prove its case on jurisdiction / service or GAFTA failures, but whether ADC was reasonable in remaining ignorant of the Award emailed to ADC's generic email between 21st March and 8th July 2024, bearing in mind the onus is on it to explain its delay with cogent reasons. Ultimately, there is no evidence ADC actually ever checked the generic email (or junk or spam folders) during sub-period 1. Indeed, the evidence of M Niangadou – who checked it months later - is there was no regular practice at ADC whereby a member of staff regularly checked the generic email inboxes. Staff simply logged in to find and deal with emails relating to their own tasks and would not have understood the significance of references to GAFTA or arbitration. As ADC had used its generic emails to communicate about the contracts with AASTAR and knew there was a dispute by early 2023, that practice seems unwise. It was not as if ADC had specified personal emails for AASTAR to use (e.g. M Niangadou's own email address) that AASTAR had not used. So, even going far beyond my view of Kalmneft factor (vi) and assuming in ADC's favour it was not properly served with the arbitration, on Kalmneft factor (ii), ADC's ignorance of the Award in sub-period 1 was not entirely reasonable and so it weighs modestly against its extension application.
a. Firstly, Mr Lamming submitted ADC could not 'have its cake and eat it': namely rely on Ivorian advice without waiving privilege in respect of it (Mid-East Sales). Yet Mr Wassouf made clear ADC were not seeking to rely on the advice itself, simply evidence the fact it was obtained, which reflects a distinction Males J (as he then was) drew in Mid-East Sales. But it means ADC's evidence is no more than simply: 'we were advised to ignore the Award rather than that being our own unilateral decision'. Undisclosed advice to ignore an award does not make it reasonable.
b. Secondly, whilst Mr Lamming claimed the Ivorian Counsel's legal advice was wrong, as he said himself, I have no (admissible) evidence of Ivorian law. The 'presumption of similarity' may well not apply (see Brownlie v FS Cairo [2021] 3 WLR 1011 (SC)) as Ivorian law may well be a Civil law system with very different procedural rules to English law. ADC may well have a strong Ivorian defence to enforcement but (subject to the Dallah principle discussed below), this does not in itself justify ADC's delay in challenging an English arbitral Award in England.
c. Thirdly, as Mr Lamming said, whilst there may be legitimate debate about whether the arbitral seat and law was that of England or Singapore, it was certainly not Cote d'Ivoire. This is akin to Broda Agro (discussed in Hays) where a Russian party relied on Russian legal advice (indeed a Russian judgment, which there is not in Cote d'Ivoire here), rather than English advice on an English award, or indeed Singaporean advice. As Mr Lamming pointed out, ADC got neither and has not explained why.
In short, I consider ADC's failure to get advice about challenging the Award – whether English or Singaporean – is not justified by its (undisclosed) Ivorian legal advice about Ivorian enforcement. Subject to one point, ADC's deliberate inaction for 22 days was unreasonable and weighs against their extension.
"[A] party which objects to the jurisdiction of the tribunal has two options. It can challenge the tribunal's jurisdiction in the courts of the arbitral seat; [or] resist enforcement in the court [of] recognition and enforcement."
In The Prestige (No.1), Walker J said at [79] and [81]:
"The Dallah principle is….so fundamental that it should not be whittled down unless the interests of justice so require. The contention [that] inaction following the…Award, but prior to notice of the application to enforce, must count against [Spain] when seeking extensions of time…[in circumstances] of the present case…seems to me an impermissible whittling down of [it].. [But] I do not rule out the possibility in other cases the Dallah principle may not for some particular reason carry as much weight as..in the present case."
However, the Dallah principle respects deliberate choice not to participate in arbitration on jurisdictional grounds, not delay due to claimed ignorance of it. Whilst the Dallah principle must not be whittled down, nor should it be extended to different scenarios. It was not relevant to a party who did not participate due to cost but then contested jurisdiction in Hays, despite Dallah being cited (on s.67 being a rehearing not a review of the arbitral decision, now adjusted slightly by the 2025 Act). Therefore, in my view the Dallah principle is simply irrelevant to sub-period 1 (or only of very minor weight). Whilst it may be relevant to sub-period 2 as ADC deliberately chose to await enforcement, that was after discovering the Award, not a choice to not participate in arbitration in disputing jurisdiction or being a party to arbitral agreement as in Dallah and Prestige. So even if the Dallah principle applies to sub-period 2, it is only of minor weight.
Factors (iv),(v) and (vii): Prejudice to AASTAR and Arbitration and Fairness to ADC.
"70. As indicated in Kalmneft, it is relevant to consider whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed.
71. On the other hand, as the Court of Appeal confirmed in [The Maria K] at [39] citing Euston, an extension of time may be refused even in the absence of such prejudice. As Steyn LJ said in Euston, by reference to a predecessor to the Act…It is not only the private interests of the parties that are relevant. There are wider interests at stake, notably the proper functioning of our arbitration system ... One of the aims of the Act of 1979 was to promote speedy finality in the enforcement of arbitration awards… Since nobody can prevent the losing party in an arbitration from applying for leave to appeal even in the most unmeritorious cases, it is of supreme importance to the proper working of our arbitration system there must be an effective procedure to ensure applications for leave are promptly made…"
It follows from that citation (and the similar observations of Andrew Baker J in Malaysia at [124(d)] that it is also the policy of the 1996 (and the 2025) Acts.
"Broda says that it would be unfair because it faces an award of $6m in circumstances where it has not had its evidence on the question as to whether there was a contract considered by either the arbitration tribunal or the court. If one assumes that its claim that there was no contract is arguable this is an undoubted hardship. But the question is whether that hardship is unfair."
Overall Conclusion
a. I can deal very shortly with the 'GAFTA fairness' point. ADC is responsible to a mixed extent for significant delay of 131 days and needs an extension of 159 days. AASTAR is not really responsible for post-Award delay, or for GAFTA's conduct earlier, of which I cannot really assess the merits at this stage. So, an extension to argue this point would cause real prejudice to AASTAR especially as it falls outside s.72(1). So refusal would not be unfair to ADC. I refuse the extension on this point.
b. I will draw the threads together on the Kalmneft factors for ADC's jurisdiction/service challenges that I have considered over several pages. ADC's delay of 109 days in sub-period 1 weighs modestly against extension and the further 22 days in sub-period 2 weigh more (even with the Dallah principle), whilst AASTAR bears no significant responsibility for those periods. So Kalmneft factors (i) and (ii) weigh significantly against extension and Kalmneft factor (iii) is effectively neutral on the extension. On the other side of the scales, whilst of course it would be fundamentally unfair if ADC had never properly been served, ADC has not shown any more than an arguable case of this, which only weighs modestly in favour of extension (Kalmneft factor (vi)). Indeed, ADC also has a potential alternative remedy under s.72(1) AA and given modest prejudice to AASTAR of extension, Kalmneft factors (iv) and (vii) do not weigh in favour. But I emphasise that even if I am wrong on s.72(1) and it is not available to ADC, the risk of unfairness to it might then weigh more in favour of extension but it would still not counter-balance the factors cumulatively against it. On the other hand, if I am right about s.72(1), on ADC's jurisdictional / service challenges in the round, whilst there is a risk it might be 'stuck' with an Award unfairly made against it, that is mitigated to an extent by potential s.72(1) relief, together with whatever arguments it can deploy to resist Ivorian enforcement. Whilst the discretion to extend under CPR 62.9 is not a simplistic scoring exercise, ultimately ADC has failed to show sufficient risk of unfairness, or to justify its significant delay when expedition is fundamental to the arbitral system. So, I refuse to extend time under CPR 62.9 for ADC's jurisdictional/service challenges as well.