Papas Olio JSC v Grains & Fourrages SA & Anor

Where arbitration rules require an award to be sent to a party, the obligation is satisfied by sending it to an address which the arbitral body reasonably believes to be appropriate. The fact that the award is not actually received does not prevent the court from treating the required sending as effective. A provision governing delivery of notices by one party does not necessarily govern the separate obligation to send an award. In construing commercial arbitration rules, contractual “provisions” may include descriptive information, such as a party’s address, and should be interpreted sensibly rather than with narrow formalism.

Papas Olio JSC appealed from a decision of the Commercial Court dismissing its application under section 18 of the Arbitration Act 1996. The application sought the appointment of an appeal tribunal to hear a proposed appeal against a FOSFA arbitration award in favour of Grains & Fourrages SA. FOSFA had rejected the notice of appeal as out of time after sending the award to Papas’s former address, although the award was not received there. The central issue was whether time began to run when the award was sent or only when Papas received it.

1. Appeal dismissed. Lord Justice Toulson gave the judgment, with Lord Justices Richards and Mummery agreeing.
2. Rule 11(b), read as a whole, concerned notices given by one party to another. Its first sentence was permissive as to the means of delivery, while its second sentence required a copy to be delivered to FOSFA. It was not directed to FOSFA’s separate obligation under Rule 6(b) to send copies of an award. Sending an award and delivering a notice served different purposes.
3. It was implicit in Rule 6(b) that FOSFA had to send the award to an address which it reasonably believed to be appropriate for the party concerned. FOSFA had done so. The address appeared in the contract confirmation, and its earlier notification that the award was available had also been successfully faxed to Papas. FOSFA was reasonably entitled to expect Papas to correct the address if it was inaccurate.
4. If it had been necessary to decide the point, Papas was also to be considered as carrying on business at the former address by reason of the contract’s provisions. The contractual “provisions” could include information describing the parties, including their addresses, even though that information was not itself a contractual obligation. The written confirmation could be treated as a contractual document or as a written expression of the parties’ agreement.
5. The rules were intended to provide a swift, fair and businesslike method of resolving commercial disputes. The result was not unfair and the appeal was dismissed.

• Court of Appeal (Civil Division): The appeal was dismissed in [2009] EWCA Civ 1401.
• High Court of Justice, Queen’s Bench Division, Commercial Court: Gross J dismissed Papas’s application for a direction requiring FOSFA to appoint an appeal tribunal.