CL-2024-000080 - [2025] EWHC 1350 (Comm)

Fecha: 03-Jun-2025

GROUNDS OF CHALLENGE

(E)

GROUNDS OF CHALLENGE

30.

CAFI’s extant grounds of challenge to the Appeal Award can be summarised as follows:

Challenge 1: The Appeal Board’s determination that it had no jurisdiction to interpret the terms of the Second Contract or how they impacted on the First Contract was wrong. The arbitration agreement in the First Contract, and the notice of arbitration, were sufficiently wide to encompass a dispute as to whether a claim for damages under the First Contract had been waived by a subsequent contract between the parties. (Claim Form Ground (1)(b))

ii)

Challenge 2: Alternatively, if the Appeal Board did indeed lack jurisdiction to consider the effect of the Second Contract, then it exceeded its jurisdiction by finding that CAFI was liable in damages to GTCS: that finding necessarily involved interpreting the terms of the Second Contract and/or how they impacted on the First Contract. (Claim Form Ground (1)(c))

This challenge is made in the alternative under section 68 of the Act: it is said to have been a serious irregularity for the Appeal Board to have held CAFI liable for damages notwithstanding a live issue as to whether the Claimant’s liability for damages was extinguished by the Second Contract. (Claim Form Ground (2)(a))

In the further alternative, CAFI says that in order to making the findings it did, the Appeal Board must have decided that a party can be held liable to pay damages in circumstances where there is an issue as to whether its liability for damages has been extinguished and that issue has not yet been resolved by a competent court or tribunal; and that was an obvious error of law on a question the Appeal Board was asked to determine, which had a substantial effect on the rights of the parties, and which it is just and proper for the court to determine. (Claim Form Ground (3)(a))

For convenience I shall use the expression “Challenge 2” to refer, compendiously, to these three points, albeit they are analytically separate challenges under different sections of the Act.

iii)

Challenge 3: If (contrary to CAFI’s primary case) the Appeal Board did construe the Second Contract, then it made an obvious errors of law (in relation to which the other requirements of section 69 are also satisfied) in (a) concluding that in order to rely on the Termination Clause in the Second Contract, CAFI had to show that it was ‘freely negotiated’ or the subject of ‘clear discussion’, and/or (b) concluding that the effect of the Termination Clause was not to extinguish any right to damages in respect of the First Contract. (Claim Form Grounds (3)(b) and (c))

31.

CAFI withdrew before the hearing two grounds under sections 67 and 68 relating to the Appeal Board’s jurisdiction under the GAFTA rules to entertain an appeal from the First Tier Tribunal’s decision that it had jurisdiction to consider the effect of the Termination Clause on the First Contract.