CL-2025-000207 - [2025] EWHC 2713 (Comm)

The claim in this action is an arbitration appeal, brought by the Claimant under section 69 of the Arbitration Act 1996. I have to determine two conflicting interlocutory applications:

The case arises from a contract concluded on 13 August 2020 between the Claimant as Seller and the Defendant as Buyer in respect of 48,000 mt crude sunflower oil. The contract was subject to the Rules of Arbitration and Appeal of the Federation of Oils, Seeds and Fats Association Limited (“FOSFA”).

A dispute arose, which was referred to FOSFA arbitration. The FOSFA first-tier tribunal issued its award in favour of the Defendant on 27 March 2024 (“the FTT Award”). The Claimant served notice of appeal under the FOSFA Rules and its appeal against the FTT Award was referred to the FOSFA Board of Appeal.

An oral FOSFA appeal hearing took place in London on 16 and 17 December 2024. The FOSFA Board of Appeal issued Arbitration Appeal Award dated 26 March 2025 (“the Appeal Award”). The fact that the Appeal Award was available was notified to the parties on that date, by an email from FOSFA to the Claimant, copied to the Defendant, as follows:

“The FOSFA Appeal Award No. 1220 is now available to the Parties upon payment of the fees, costs and expenses.

The gross fees, costs and expenses of the Award amount to £110,002.16 against which we hold a deposit from you as Appellants of the sum of £89,535.22. This leaves an outstanding balance of £20,466.94 required to take up the Award.

We hereby call upon you as the Appellants to pay the outstanding balance and take up the Award. On receipt of your payment, we shall release the Appeal Award to the parties.

Please arrange for payment of the Award fees to be made by bank transfer, ensuring that charges should be for your own account. The Federation’s bank details are [….]”

The Claimant is a Russian entity. It encountered difficulties in paying for the Appeal Award because of sanctions. Ultimately, payment was made by an intermediary in the UAE. The intermediary made the relevant transfer on 8 April 2025 – a Saturday. The Appeal Award was released by FOSFA and received by the Claimant on the following Monday, 10 April 2025.

The Claimant issued its claim form for the section 69 appeal on 8 May 2025. This was 43 days after the date of the Appeal Award; and precisely 28 days after the date when the Claimant received the Appeal Award.

The Defendant appreciated that there was a point for it to be taken under s. 70(3) of the Arbitration Act 1996, on the basis that the section 69 appeal was out of time. On 11 June 2025, the Defendant wrote to the Claimant attaching its application for the Claimant’s claim form to be struck out. The Defendant’s application had not yet been filed with the court.

On 17 June 2025, the Claimant issued and filed its application seeking, if necessary, an extension of time. This was followed on 18 June 2025 by the filing of the Defendant’s application for the claim form to be struck out.

In these circumstances, two questions arose:

On both questions, I was greatly assisted by both Counsel – Mr Rowan Pennington-Benton for the Claimant and Mr Chris Smith KC for the Defendant. I am very grateful to them both.