Недавно английский суд рассмотрел вопрос о сроке оспаривания решения арбитража ГАФТА. По английскому законодательству об арбитраже предусматривается срок продолжительностью 28 дней для обжалования арбитражного решения стороной спора в суд. Из решения суда можно сделать вывод о том, что этот срок начинает течь с даты принятия первого решения арбитража ГАФТА, поскольку оно уже является обязательным и заключительным для сторон, независимо от его обжалования внутри системы ГАФТА, то есть в апелляционную инстанцию ГАФТА.
In a recent judgment, PEC Limited v Asia Golden Rice Co Limited (17 October 2012), the Commercial Court has clarified the time limit for challenging the decision of a first tier GAFTA tribunal that it has jurisdiction to hear a dispute.
Asia Golden Rice Co Limited (AGR) agreed a contract for the sale of 25,000MT of Thai Rice to PEC Limited (PEC). AGR alleged that PEC failed to perform and brought their claim before a GAFTA tribunal earlier this year.
In its award, the tribunal found that the contract of sale incorporated the GAFTA Arbitration Rules (the GAFTA Rules) and so it had jurisdiction to hear the dispute. It found in favour of AGR and ordered PEC to pay damages in the sum of US$6,250,000.
PEC appealed the tribunal’s findings on the merits to the GAFTA Board of Appeal. At the same time, PEC challenged the tribunal’s jurisdiction. Under the GAFTA Rules, if a GAFTA tribunal decides it does not have jurisdiction to hear a dispute, a party can pursue an appeal against that decision to the GAFTA Board of Appeal. Where, as here, a tribunal rules that it does have jurisdiction, no appeal to the GAFTA Board is available.
However, under section 67 of the English Arbitration Act 1996 (the “Act”), any party to any arbitration can apply to the English Court to challenge a decision of an arbitral tribunal as to its own jurisdiction. The time limit for making such an application is 28 days, either from the date of the decision on jurisdiction, or from the date of exhaustion of“…any available process of appeal or review”.
PEC wanted to make an application under section 67 of the Act. The issue was whether they needed an extension of time to do so. PEC argued that they did not, on the basis that the 28 day time period would only start to run from the date of the GAFTA award on the appeal as to the merits – which was still underway. PEC placed emphasis on the reference to “any available process of appeal or review” in the Act and submitted that this had a wide enough meaning to include their outstanding appeal.
Although the parties had by then agreed that the Court should grant PEC an extension of time to make their application under section 67 of the Act, in a short judgment the Court gave a reasoned decision against PEC’s arguments.
The Court held that the GAFTA Rules are clear that a first tier tribunal’s award that it has jurisdiction is “conclusive and binding”. As the only route to challenge such a decision is by way of section 67 application under the Act, the time limit for bringing such a challenge must be 28 days from date of the first tier award. Contrary to PEC’s submissions, under the GAFTA Rules there is no available arbitral process of appeal or review where the first tier tribunal determines it has jurisdiction. PEC therefore required an extension of time (which they were granted in any event).
For GAFTA practitioners contemplating a section 67 application against a first tier award, the message is clear: time will start to run from the date of the first tier award, irrespective of whether there is an appeal on any other issue to the GAFTA Board of Appeal.
Автор: Ian Mathew, John Rollason
Источник: http://www.hfw.com/publications/bulletins/commodities-bulletin-december-2012/commodities-bulletin-december-2012-challenging-gafta-jurisdiction-court-clarifies-time-limit