Challenging an award

There are various mechanisms for challenging an arbitration award in the Arbitration Act 1996. One is by means of a direct appeal under s67. Another is the seeking of a declaration under s72 that the arbitrators did not possess jurisdiction. The latter can be used at any stage in the arbitral process, and there are no time limits for its use. By contrast, s67 requires an application to be made within 28 days of the publication of the award. In Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH [2009] EWHC 3318 (Comm) both provisions were relied upon, but neither was available for procedural reasons.

Broda: the facts

In October 2007 Toepfer commenced GAFTA arbitration proceedings against Broda for breach of a contract for the supply of wheat by Broda to Toepfer. Broda’s response was to deny the existence of the contract, in that no price had been agreed, and in December 2007 Broda commenced proceedings in Russia for a declaration to that effect. On 3 January 2007 Toepfer filed its first submission with GAFTA, seeking damages of US$5,462,668.35. On 31 January lawyers for Broda wrote to GAFTA ‘without prejudice and with full reservation of rights’ disputing jurisdiction and seeking a stay of the arbitration until the Russian proceedings had been resolved.