QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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PEC LIMITED |
Applicant |
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ASIA GOLDEN RICE CO LTD |
Respondent |
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Michael Collett and Charlotte Tan (instructed by Clyde & Co solicitors) for the Respondent
Hearing dates: 12 October 2012
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Crown Copyright ©
Mr Justice Hamblen :
Introduction
(1) A contract was concluded on 15 May 2008.(2) The contract concluded incorporated the GAFTA 125 Arbitration Rules.
(3) The tribunal had jurisdiction to hear the dispute.
(4) The contract concerned a tonnage of 25,000 mt.
(5) PEC was to pay AGR US$6,250,000 plus interest, fees and costs.
(1) The time for making an application under section 67 of the 1996 Act has expired. If PEC wishes to make such an application, it requires an extension from the Court.
(2) It is a matter for the Court whether it is prepared to grant such an extension on the basis of PEC's evidence.
The GAFTA Rules
"8. ISSUES OF SUBSTANTIVE JURISDICTION, PROVISIONAL ORDERS AND AWARDS ON DIFFERENT ASPECTS
8.1 Issues of Substantive Jurisdiction
(a) The tribunal may rule on its own jurisdiction, that is, as to whether there is a valid arbitration agreement, whether the tribunal is properly constituted and what matters have been submitted to arbitration in accordance with the arbitration agreement.
(b) In the event that the tribunal determines it has no jurisdiction, GAFTA will notify the parties of the tribunal's decision. Such decision shall be final and binding upon the parties subject to any right of appeal to a board of appeal pursuant to Rule 10. … In the event that the tribunal determines that it has jurisdiction, no appeal shall lie to a board of appeal.
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9. AWARDS OF ARBITRATION
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9.4 Subject to any right of appeal pursuant to Rule 10 awards of arbitration shall be conclusive and binding on the parties with respect both to the matters in dispute and as to costs.
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10. RIGHT OF APPEAL
10.1 Save as provided in Rules 6.4, 8.1(b), 8.2, 19 and 21, either party may appeal against an award to a board of appeal provided that the following conditions are complied with: - …
12. APPEAL PROCEDURE
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12.6 The award of the board of appeal … shall be final, conclusive and binding."
The 1996 Act
"67.— Challenging the award: substantive jurisdiction.
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) 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 the tribunal 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).
(2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction.
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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.
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73.— Loss of right to object.
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(2) Where the arbitral tribunal rules that it has substantive jurisdiction and a party to arbitral proceedings who could have questioned that ruling—
(a) by any available arbitral process of appeal or review, or
(b) by challenging the award,
does not do so, or does not do so within the time allowed by the arbitration agreement or any provision of this Part, he may not object later to the tribunal's substantive jurisdiction on any ground which was the subject of that ruling."
(1) Whether the time for making an application under section 67 of the 1996 Act has expired
(1) If there is "any available arbitral process of appeal or review", that must be exhausted before any application or appeal is brought.(2) When the Board of Appeal issues its own Award, the effect of that Award is to confirm, vary, amend or set aside the First Tier Award, putting the First Tier Award into its final shape.
(3) If a right to an available arbitral process of appeal or review is exercised, time does not run from the date of the First Tier Award, but from the date of the Board of Appeal Award.
(4) If a right to an available arbitral process of appeal or review is not exercised, the issue is academic; because section 70 (2) is a bar to any application to the Court.
(5) The meaning of the words in section 70 (3) is prospective – one looks at the position on the 28th day after the Award sought to be challenged and asks as at that point "Has there been any arbitral process of appeal or review brought against that Award – i.e the Award sought to be challenged." If so, time is extended until notification of the decision of the Board of Appeal.
(2) Whether an extension of time should be granted
Conclusion