The Status Of Interim Arbitration Awards: Are They 'Provisional' Or 'Partial'?

Nicola Rotenberg v Sucafina SA [2011] EWHC 901 (Comm)

The issue in this case was whether the Claimant could rely on s.79 of the Arbitration Act 1996 (the "Act") to extend a time limit under the arbitration rules of the Coffee Trade Federation Limited (the "CTF"). The Court also considered whether the "interim" awards made by the arbitration appeal panel on these issues should stand. Eder J., did not think that an extension was justified in the circumstances and provided some useful insight into the status of "interim" awards, where the Act applies.

Background Facts

The appellant, Mr. Rotenberg, was the co-managing director and shareholder of a general trading company ILFEC, based in the Democratic Republic of Congo, and which was affiliated to a company known as CAFECA in the Central African Republic. In September 2002, the respondents, Sucafina, a Swiss company, commenced arbitration in London against Mr Rotenberg in relation to 64 contracts for the supply of coffee. The principal issue between the parties was whether the contracts were concluded by Mr Rotenberg personally or with ILFEC or CAFECA.

The award of the Arbitrators ("Original Award") held Mr Rotenberg liable to pay Sucafina damages together with interest and costs. On appeal, the appeal board appointed by the CTF made several "interim appeal awards" pursuant to the arbitration rules of the CTF (the "CTF Rules") including a decision that only 9 of the 65 contracts in question were made with Mr Rotenberg personally and, in fact, Sucafina was liable to Mr Rotenberg under those nine contracts.

Before publishing its Final Award, the CTF called for payment of its fees and expenses. The parties failed to meet the deadline imposed by the CTF for payment of such fees and although payment was later made, the CTF refused to publish this Final Award as it was entitled to do under the CTF Rules. Mr Rotenberg appealed to the Commercial Court seeking an order under s.79 of the Act, for an extension of the time limit under the CTF Rules.

The Commercial Court Decision

The Declaration

Eder J. granted a declaration that the Interim Awards should be considered final and binding. Whilst the word "interim" was ambiguous, the best construction of the CTF Rules 48 was that the tribunal had the power to make a partial award (as opposed to a provisional award) which was final and binding. The CTF Rules provided for the "Original Award" to be binding in the event that the appeal award was not taken up...