Challenge Jurisdiction Of GAFTA Arbitral Tribunal Under S.67 Of The Arbitration Act 1996

Published date16 December 2021
Subject MatterLitigation, Mediation & Arbitration, Arbitration & Dispute Resolution
Law Firm9 Stone Buildings Barristers' Chambers
AuthorMs Cecilia Xu Lindsey

Cecilia Xu Lindsey practises in a wide spectrum of Commercial and Chancery areas in both dispute resolution and advice, with an emphasis on Commercial Law (contract, sale of goods, e-commerce, sports law), Company Law, Fraud and Economic Crimes, Financial Services and Banking Law, Insurance/Reinsurance, and International Law (international trade, FDI and investment treaty). She also acts as Counsel in arbitrations, and accepts appointments as Arbitrator. She is fluent at native level in written and oral Chinese Mandarin.

Background

The author Cecilia Xu Lindsey provides analysis of a recent English High Court case law relating to a matter of GAFTA arbitration, based on her experience of having acted as arbitration counsel under GAFTA arbitration rules.

The dispute between Black Sea Commodities Ltd (Claimant Seller) and Lemarc Agromond PTE Ltd (Defendant Buyer) arose from a sale of a consignment of Ukrainian corn FOB Odessa in March 2018. The market was volatile in the relevant times of this trade.

The parties' dispute had been arbitrated by a GAFTA arbitral tribunal of three arbitrators - Messrs Burneski, Lucas and Sipos. An award dated 14 April 2020 was given in favour of the Defendant on jurisdiction and liability, followed by a second award on quantum dated 8 July 2020.

The Claimant subsequently made an application to the English High Court under s.67 of the UK's Arbitration Act 1996 (the 1996 Act) to challenge the GAFTA tribunal's jurisdiction and the Award dated 14 April 2020.

In this case, the English court was asked to decide whether there was a binding agreement for arbitration between the parties.

The author's note: s.67 provides ground for challenge of an award as to tribunal's substantive jurisdiction (subsection (1) (a)). On such an application, the English court may by order confirm (subsection (3) (a)), vary ((3) (b)), or set aside the award in whole or in part ((3) (c)).

Brief facts

The parties engaged a broker in this trade to carry out exchange of communications between them. Aspects of agency or authority were not disputed in this case.

There was no prior dealing between the parties.

After 9 March 2018, the parties negotiated a number of terms in the draft conditions (including the GAFTA terms which covered the arbitration clause) sent by the broker. On 14 March, the Defendant sent to the broker the signed draft, which was not accepted by the Claimant.

The Claimant submitted that there was no arbitration agreement between the parties. It...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT