Nidera BV v Venus International Free Zone for Trading & Marine Services SAE
2014
COMMERCIAL COURT
United Kingdom
CORAM
- MR JUSTICE WALKER
Areas of Law
- Commercial Law
- Contract Law
2014
COMMERCIAL COURT
United Kingdom
CORAM
AI Generated Summary
This case involved an appeal by Nidera BV against a GAFTA Arbitration Award favoring Venus International, concerning a contract for the delivery of Ukrainian corn. The core issue was whether buyers' extension of the delivery period under clause 8 of GAFTA 49 was valid after presenting a vessel within the original period. The court upheld the board's decision that buyers had a valid right to extend, rendering sellers' contract cancellation as a repudiatory breach. The appeal was dismissed.
Judgment
Mr Justice Walker:
A. Introduction
This is an appeal by Nidera BV (“sellers”) from Arbitration Appeal Award No. 4314 (“the board award”) dated 4 June 2013. The board award was made by a board of appeal of the Grain and Feed Trade Association (“GAFTA”). The board made a finding (“the extension finding”) in favour of Venus International Free Zone for Trading and Marine Services SAE (“buyers”) that they had validly extended the contract delivery period. Sellers had cancelled the contract in reliance upon a prohibition of export clause. The board held that the consequence of the extension finding was that sellers’ cancellation of the contract was premature, constituting a repudiatory breach of contract which had been validly accepted by buyers.
In this regard the board reached the same conclusion as the original decision of GAFTA arbitrators (“the tribunal”) in an award (“the tribunal award”) dated 10 May 2012. The result was that buyers succeeded in their claim for default damages pursuant to a contract dated 23 June 2010, as amended on 12 July 2010, for thirty thousand metric tonnes of Ukrainian yellow corn, 2010 crop on terms FOB stowed and trimmed one safe Black Sea or Ukrainian port in sellers’ option.
At the hearing before me I was greatly assisted by skeleton arguments and oral submissions from Mr Simon Rainey QC on behalf of sellers and Ms Sara Cockerill QC on behalf of buyers. The matters dealt with in this judgment are as follows:
Paragraph A. Introduction 1 B. The questions on appeal 4 C. Relevant provisions in GAFTA 49 5 D. Delivery period and events in Oct/Nov 2010 6 E. The arbitration 8 F. The parties’ submissions 11 G. Analysis 27 H. Conclusion 34
B. The questions on appeal
Permission to appeal was given by Cooke J on 8 November 2013 on two questions of law. Both concern clauses 6 (period of delivery) and 8 (extension of the contract period of delivery) of the GAFTA No. 49 contract for the delivery of goods from central and eastern Europe in bulk or bags FOB terms (“GAFTA 49”). The first was whether clause 8 may be invoked by buyers where they have presented a vessel with readiness to load within the delivery period under clause 6 of GAFTA 49. The second question was whether buyers’ claim for an extension of the delivery period on 29 October 2010 was a valid claim under clause 8, with the consequence that the original period under clause 6 was thereby extended to 21 November 2010. It is common ground that the second question mus