“Any dispute arising out or under this contract shall be settled by arbitration in accordance with Arbitration Rules N.125 of the Grain and Feed Trade Association, in the edition current at the date of this contract. Such Rules forming part of this contract and of which both parties hereto shall be deemed to be cognizant. Demurrage/ Dispatch / Detention/ Laytime disputes for the port of discharge could be submitted, at Sellers’ option, to the LMAA arbitration, according to LMAA Terms (2017) or, in disputes up to 100,000 USD, to LMAA Small Claims Procedure (2017). Arbitration to take place in London / England.”
“Buyers have provided supportive evidence coming directly from two financial institutions which rejected to process the payment or finance the cargo … Both of the financial institutions were declared to Sellers at the time of negotiations … However, as per contract it is clear that banks’ rejection to dealt with payment of this cargo will bring the contract to an end and cargo will become Sellers’ liability.”
“as agreed between you and Mr Abdel Fadil that you will furnish us by: 1. Cancellation for the old contract. 2. New contract by the new terms agreed mentioned that N.O.R. will be tendered after the vessel berthed on the discharge berth. 3. You have to instruct the marine agency to ask port authority to address the vessel to Dekheila port … Those should be done today.”
“Both parties have agreed that Contract No. RMW125-11032022-1 dd. 11.03.2022 [i.e. the First Contract] … is terminated and considered void.”
“(i) CAFI refers to the new contract, but the Tribunal was not authorised to consider the new contract, since the dispute between the parties arose from the first contract, which has its own arbitration agreement, based on which the Tribunal was created. … (iv) Having made a conclusion about the intentions of the parties, the Tribunal went beyond its powers, since the question of what the parties’ intentions were when concluding the new contract can be considered and decided only by the Tribunal, which has the authority and jurisdiction to consider the dispute (if any) under the second contract. In fact, everything that happened during the new contract (from 24 March to 1 April) should not have been of interest to our Tribunal, and even more so, this Tribunal had no authority and jurisdiction to examine the implementation of the new contract, documents related to it, payments, letters, and other things, including the wording of the new contract itself.”
“Jurisdiction 9.2. We started by checking the original appointment of arbitrators. Sellers claimed arbitration on28 July 2022 in respect of the Contract, and Buyers appointed their arbitrator on4 August 2022 also in respect of the Contract. We were not shown any message claiming arbitration in respect of the re-sale; indeed, neither party contended that there was any such message. 9.3. We then considered our position in respect of the claim under the Contract. Buyers admitted that we had arbitral jurisdiction under the separation principle, but that nevertheless the Contract was void. Sellers on the other hand contended three points: (a) that our jurisdiction was limited to the Contract only and we had no jurisdiction to consider anything arising out of the re-sale; (b) that the Contract was terminated before the negotiation of the re-sale and thus the Contract could not be terminated retrospectively; and (c) that they had not agreed to the term that the Contract was “void”. 9.4. Insofar as our jurisdiction under the Contract is concerned, we are satisfied that such jurisdiction was conferred on us by the express terms of the Contract, and we have not seen anything in the parties’ subsequent communications modifying that position. WE THEREFORE FIND THAT we have jurisdiction to address all issues arising out of the Contract, including its validity and termination. 9.5. As to the re-sale, we noted that Sellers had signed and stamped the re-sale confirmation and thereby had endorsed the Termination Clause. Sellers suggested that they had merely overlooked it. However, the resale contract was negotiated and concluded a few days after the Contract had been terminated, and we saw no suggestion in any of the contemporaneous correspondence that the parties had in fact freely negotiated the specific wording of the Termination clause. Mr Essawy’s messages referred only to the Contract being “cancelled”, and this message was sent after the Contract had already been terminated by Sellers. 9.6. We discussed whether, as a matter of principle, there was any reason why the Contract could not be declared retrospectively as “void”
“31. In any event, and regardless of Award §9.8, the Appeal Board did reference the Termination Clause and its construction (§9.6-§9.7), and considered the Second Contract (which contained the Termination Clause) “good evidence” of what had happened (§9.8). 32. The Buyers have latched onto the use of the word “jurisdiction” by the Appeal Board in §9.8. The Appeal Board’s language is not legally felicitous: however, trade arbitrators are neither expected nor required to deploy language with the precision of Commercial Court judges, and the Court should read their awards with that in mind. The Appeal Board’s meaning is tolerably clear: there was no jurisdiction – properly understood – under the Second Contract (as also found by the First Tier). However, the Appeal Board – like the First Tier Tribunal – considered the Second Contract was evidence of what happened between the Parties after the First Contract. Such evidence could then be properly weighed and assessed within an arbitration founded on the First Contract. 33. The First Tier Tribunal and Appeal Board differed in the interpretation they placed on the Second Contract as evidence of later events and how that then fitted into the assessment of the Buyers’ argument that the Sellers had waived their rights. This is a straightforward difference in evaluating evidence. This is not susceptible to a s67 challenge. On the contrary, the Court must be astute to avoid challenges being used to circumvent an Award’s unchallengeable assessment of evidence.”
“It may be that the many decisions in this area have over-elaborated the application of familiar principles of construction, but the following propositions can be derived from them: (1) Jurisdiction clauses should be construed widely and generously. (2) An agreement which is part of a series of agreements should be construed by taking into account the overall scheme of the agreements. (3) It is generally to be assumed that just as parties to a single agreement do not intend as rational business people that disputes under the same agreement be determined by different tribunals, parties to an arrangement between them set out in multiple related agreements do not generally intend a dispute to be litigated in two different tribunals. (4) Where there are multiple related agreements, the task of the court in determining whether the dispute falls within the jurisdiction clauses of one or more related agreements depends upon the intention of the parties as revealed by the agreements (at the time when they were entered into) as against these general principles. (5) Rational business people are unlikely to intend that disputes between them should fall within the scope of two inconsistent jurisdiction clauses. (6) What is required is a broad, purposive and commercially-minded construction, in the light of the transaction as a whole, taking into account the overall scheme of the agreements and reading sentences and phrases in the context of that overall scheme. (7) This may include enquiring under which of a number of inter-related contractual agreements a dispute actually arises, and seeking to do so by locating its centre of gravity and thus which jurisdiction clause is closer to the claim. (8) Nevertheless the normal process of construction may not be able to avoid a degree of fragmentation and overlap.”
“[a]ny dispute arising out or under this contract”
“Applications to Gafta for the appointment of an arbitrator shall be accompanied by: - (a) prima facie evidence that the parties have entered into a contract subject to these Rules, ..”
“In the absence of an agreement from all the parties involved, the tribunal has the right to conduct arbitral proceedings concurrently with other arbitral proceedings, and, in particular, concurrent or consolidated hearings may be held, but separate awards shall be made pursuant to each contract.”
“(a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.”
“The Appeal Board in effect construed the phrase “terminated and void” in the Second Contract referring to the First Contract, as allowing the Respondent to retain its right to damages for breach under the First Contract. This is not obviously wrong. The Appeal Board was attempting to construe the (rather unusual) concept of voiding a earlier Contract retroactively by a later contract when that First Contract had already been terminated for breach with the innocent terminating party expressly reserving its rights. The Appeal Board’s statement that the word “void” simply was a reiteration of terminated makes sense in that context ” (§ 82) “The Appeal Board appears to have reasoned that “void” was only a reiteration of “terminated”