Soufflet Negoce SA v Fedcominvest Europe Sarl
2014
COMMERCIAL COURT
United Kingdom
CORAM
- MR JUSTICE EDER
Areas of Law
- Contract Law
- Arbitration Law
2014
COMMERCIAL COURT
United Kingdom
CORAM
AI Generated Summary
The case involves an appeal by Sellers against a GAFTA Award concerning a contract clause for notice timing. The court ruled that the 'deemed notice provision' only applies to resales/repurchases, upholding the original decision in favor of the Buyers.
Judgment
Mr Justice Eder:
Introduction
This is an appeal by the claimants (the “Sellers”) against Appeal Award No 4328 (the “Award”) issued by the GAFTA Board of Appeal (the “Board”) on 8 August 2013. The appeal is brought pursuant to s69 of the Arbitration Act 1996 and permission was granted by Teare J. It concerns a short point of construction of a “Notices” clause which appears in numerous GAFTA standard forms. At the outset, I should express my thanks to both Counsel for their helpful written skeleton arguments which I have, where appropriate, used in this Judgment in summarising the points raised and expressing my conclusions.
The relevant facts appear from the Award and can be summarised as follows. By a contract dated 4 October 2010 (the “Contract”) the Sellers agreed to sell 38,000MT of French feed barley to the Defendants (the “Buyers”) on FOB terms. The terms of GAFTA 64 were incorporated and provided in material part as follows:
“ 6. PERIOD OF DELIVERY
…
In case of re-sales all notices shall be passed on without delay, where possible, by telephone and confirmed on the same day in accordance with the Notices Clause.
…
8. EXTENSION OF DELIVERY
The contract period of delivery shall be extended by an additional period of not more than 21 consecutive days, provided that Buyers serve notice claiming extension not later than the next business day following the last day of the delivery period. …
19. NOTICES
All notices required to be served on the parties pursuant to this contract shall be communicated rapidly in legible form. Methods of rapid communication for the purposes of this clause are defined and mutually recognised as: - either telex, or letter if delivered by hand on the date of writing, or telefax, or E-mail, or other electronic means, always subject to the proviso that if receipt of any notice is contested, the burden of proof of transmission shall be on the sender who shall, in the case of a dispute, establish, to the satisfaction of the arbitrator(s) or board of appeal appointed pursuant to the Arbitration Clause, that the notice was actually transmitted to the addressee. In case of resales/repurchases all notices shall be served without delay by sellers on their respective buyers or vice versa, and any notice received after 1600 hours on a business day shall be deemed to have been received on the business day following . A notice to the Brokers or Agent shall be deemed a notice under this contract. ” (Emphasis added.)
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