Contractual time limits

In Papas Olio JSC v Grains & Fourrages SA & Anor [2009] EWCA Civ 1401, the Court of Appeal has upheld the decision of Gross J, [2009] EWHC 1257 (Comm) (discussed in the November 2009 issue of Arbitration Law Monthly), in which the learned judge ruled that the applicant, Papas, was barred by the time limits in the rules of FOSFA from appealing against an award. The only reasoned judgment was given by Toulson LJ.

The rules of FOSFA

The case turned on the meaning of the rules of FOSFA in respect of the sending of awards to the parties. Rule 6(b) imposes upon the arbitrators the duty to send the original and a copy of the award to FOSFA. On receipt FOSFA is to inform the parties that the award is at their disposal upon payment of the fees and expenses of the arbitration. Payment must be made within 42 days, failing which the right to appeal against the award is lost. Once payment has been made, FOSFA is required to ‘send the original award to the party who has paid and send a copy to the other party’. The right of appeal is contained in r7(a), which confers a right of appeal to the appeal panel as long as r6(b) has been complied with and that notice of appeal has been received by FOSFA not later than noon on the 28th consecutive day after which the award has been sent to the parties (following payment). The requirements for service of an award or other documents are set out in r11(b), in the following terms: ‘(b) Any notice may be delivered personally or left at the place where the party to whom it is to be delivered is carrying on business or (by reason of the provisions of the contract) is to be considered to be carrying on business’.