Service of arbitration proceedings in cyberspace — don’t make idle assumptions.

In Glencore Agriculture BV v Conqueror Holdings Ltd [2017] EWHC 2893 (Comm), decided today, Conqueror had a smallish demurrage claim in respect of a 30,000 dwt bulker, the Amity, which charterers Glencore had ordered to wait idle for a time before taking on a cargo of corn at Ilychevsk in Ukraine. Glencore’s point of contact with Conqueror in arranging the nuts and bolts of loading and dealing with the delay had been one FO, a fairly junior Glencore man: not surprisingly all messages had been sent by email to and from FO’s Glencore email address.

There was an arbitration clause in the (Synacomex) charter. To get the arbitration ball rolling for its demurrage claim, Conqueror sent notice of its appointment of an arbitrator to FO’s email address (but nowhere else). Nothing happened, despite a number of reminders sent to the same address: in the event Conqueror’s arbitrator determined the claim in Conqueror’s favour as sole arbitrator.

Glencore applied for a declaration that the award did not bind it, under s 72 of the Arbitration Act 1996 (and also ss 67-68 of the same Act). Had there been proper service? Popplewell J said No. The issue in an arbitration case fell to be decided on ordinary principles of agency. FO, being a fairly junior dogsbody in the Glencore corporate machine, had neither express nor implied authority to receive formal service of claims: nor had there been any holding out of him as having it, merely because he had made the arrangements for the loading.

Entirely correct, in the view of this blog. And one doesn’t have to be very sympathetic to Conqueror. They could always have used old-fashioned snailmail sent to Glencore’s head office: see s 76(4(b) of the Act. It seems, with respect, that someone at Conqueror just indolently assumed that it would do to email a contact in the company he happened to have dealt with before. That won’t, and shouldn’t, do. One more simple point for solicitors acting for arbitration parties to add to their checklist.