African Distribution Company S.a.R.L v Aastar Trading Pte Ltd

An extension of time to challenge an arbitration award under sections 67 or 68 of the Arbitration Act 1996 is discretionary and must be approached through the Kalmneft factors, giving substantial weight to finality and compliance with the statutory 28-day period. A challenge based on alleged non-service may be arguable without being strong. Service of arbitral proceedings by email can be effective under section 76(3), including through a generic address, where the address was promulgated by the recipient and the email was received. Opening or reading the email is not ordinarily required.

Section 72(1) may be available to a non-participant after an award, without a fixed time limit, although any post-award relief, particularly relief equivalent to section 67 relief, faces a high threshold. The court refused an extension because the delay was substantial, the applicant’s conduct was insufficiently justified, and the alleged procedural irregularity was weakly articulated.

African Distribution Company S.a.R.L. sought to challenge an arbitration award made in favour of Aastar Trading Pte Ltd. ADC had taken no part in the arbitration and said that the notice of arbitration and subsequent communications, sent to two generic email addresses, had not been received or read.

The award was dated 21 February 2024. ADC issued its arbitration claim on 27 August 2024, relying on sections 67 and 68 of the Arbitration Act 1996, and sought an extension of time under section 80(5) and CPR 62.9. It also advanced a section 72(1) claim, concerning the tribunal’s constitution, which the court considered only as an arguable alternative remedy.

The central issues were whether email service was legally effective and whether the delay justified extending time for the statutory challenges.

1. Section 72(1). The court concluded, on a non-binding basis, that section 72(1) is not confined to pre-award applications. It is a flexible remedy enabling a non-participant to question the substantive jurisdiction of the arbitral process after an award, without the section 70(3) time limit. Relief remains discretionary. Relief equivalent to setting aside an award under section 67 would require very unusual circumstances.
2. Email service. Under section 76(3) of the Arbitration Act 1996, service may be by any effective means. Following Bernuth Lines v High Seas Shipping and Glencore v Conqueror, a generic email address may suffice where it has been promulgated by the recipient, on its website or otherwise, so that the sender can reasonably expect communications to reach someone authorised to deal with them. Receipt is relevant; opening and reading the email is not essential. The absence of read receipts created an evidential issue but did not make service legally invalid.
3. The use of ADC’s generic email addresses in its dealings with Aastar made promulgation arguable, but not strong. ADC’s evidence of non-receipt was also arguable but limited. Its challenge based on non-service therefore had only modest weight under the merits factor.
4. The court applied the Kalmneft factors. The delay was 159 days beyond the statutory period, including 109 days before ADC first saw the award and a further 22 days before formal service in enforcement proceedings. ADC’s failure to obtain advice about challenging an English or Singaporean award was unreasonable. The Dallah principle did not materially assist because ADC’s delay followed discovery of the award rather than a deliberate decision not to participate in arbitration on jurisdictional grounds.
5. The pleaded section 68 complaint that GAFTA acted unfairly by using generic email addresses was insufficiently particularised and was not shown to be arguable. It did not justify an extension.
6. The applications for extensions of time for the sections 67 and 68 challenges were refused. Those challenges were dismissed. The section 72(1) claim remained outstanding, with directions for expert forensic IT evidence and a possible amendment application. ADC was ordered to pay Aastar’s costs of and occasioned by the extension hearing.

First-instance decision. No prior appellate decision is stated in the judgment.