Rotenberg v Sucafina SA

An arbitral tribunal may make a partial award under section 47 of the Arbitration Act 1996. Such an award is final and binding as to the matters determined, even if further issues remain. The use of the expression “interim award” does not by itself make the award provisional. Clear words are required before a later failure to take up a final award can retrospectively undo earlier partial awards. Section 79 permits an extension of an agreed or statutory time limit only where available recourse has been exhausted and substantial injustice would otherwise result. The threshold is stringent. The court may refuse an extension where the party knew of the deadline, had legal representation and funds to comply, and provided an inadequate explanation for the default, notwithstanding substantial potential financial loss.

The claimant appealed against an arbitral award concerning coffee-sale contracts. The Appeal Board published two awards under Rule 48. The first determined which contracts had been made with the claimant and reversed the original award in respect of the remaining contracts. The second determined quantum. A further award on costs was prepared but was not taken up within the 30-day period in Rule 52(c).

The claimant sought a declaration that the two published awards remained final and binding. He alternatively sought an extension of time under section 79 of the Arbitration Act 1996 to take up the intended costs award.

1. Declaration. The provisions of the Arbitration Act 1996 applied subject to any express modification or inconsistency in the CTF Rules. Section 47 permitted an arbitral tribunal to make more than one award on different aspects of the dispute. Read with section 58, a partial award was final and binding as to the matters it determined.
2. The distinction between a partial award under section 47 and a provisional award under section 39 was fundamental. A provisional order was subject to the tribunal’s final adjudication. The term “interim award” was potentially confusing and did not determine which type of award had been made.
3. Rule 48 was properly construed as permitting a partial award which was final and binding. Rule 52(c) addressed the ordinary case of a single appeal award which was not taken up after notification. It did not retrospectively unwind published partial awards where no Rule 52(b) notification had preceded their publication.
4. The First and Second Interim Appeal Awards were objectively intended to be final and binding concerning the matters stated in them. They were therefore final and binding under sections 47 and 58, regardless of the subsequent failure to pay the sum required for publication of the intended costs award. The First Interim Appeal Award also superseded the original award as to first-tier costs, leaving those costs undetermined.
5. Section 79 application. The court proceeded on assumptions favourable to the claimant concerning jurisdiction, available recourse, compliance and waiver. Nevertheless, the claimant failed to satisfy the stringent “substantial injustice” threshold. He knew of the clear deadline, had London legal representation, had funds and facilities to pay, and gave vague and unsatisfactory explanations for the default. The later delay in issuing and progressing the application also weighed against relief.
6. The declaration was granted. The application for an extension of time under section 79 was refused.