Take Notice Of The Notice Provisions: Have You Been Served?

In Glencore Agriculture v Conqueror Holdings the Commercial Court held that a notice of arbitration served by email on a junior employee did not constitute good service. The Commercial Court's finding comes 14 months after the notice of arbitration was 'served' and after the arbitrator issued their award - clearly time and money wasted following a fairly basic and avoidable mistake. In this article we give some advice on how to ensure you effect good service and ensure that you know when you have been effectively served.

Glencore v Conqueror: the facts

Conqueror instructed a claims adjuster to pursue a damages claim arising out of the detention of a vessel at its load port. The claims adjuster sent a letter before action to the individual at Glencore with whom he had previously had email communications regarding the performance for the voyage and the delay at the load port. The claims adjuster used that same email address for appointment of the arbitrator and all other correspondence relating to the arbitration. Save for an automatic reply advising of a temporary absence, no reply was received from that email address.

The arbitrator proceeded to make an award. The award was posted to Glencore.

Glencore did not participate in the arbitration and stated that it was unaware of the proceedings until it received the award in the post. Glencore applied to the English Court under s. 72 Arbitration Act 1996 (AA 1996) (savings for the rights of person who takes no part in proceedings) for the award to be set aside. The question for the court was whether the notice of arbitration had been validly served under AA 1996, s 17.

A few points to note:

This was an ad-hoc arbitration under the LMAA Terms. This issue of service is unlikely to arise, or at least reach this stage, in an institutional arbitration (see below). The email address used was in the format of [individual name@domain name], it was not a generic email address eg [info@domain name]. Service not valid

Mr Justice Popplewell in the Commercial Court found that the individual to whom the emails had been sent did not have actual, implied or ostensible authority to accept service of notices in the arbitration. The notice of arbitration had therefore not been validly served and he set aside the award under AA 1996, s 72.

AA 1996, s76(3) permits service of notice by 'any effective means'. This includes email (as held in The Eastern Navigator) but, as Popplewell J identified, there is a distinction...