Trans Trade Rk Sa v Sebat Shipping and Trading Company [2026] EWHC 1761 (Comm)

Neutral Citation Number:[2026] EWHC 1761 (Comm)Case No CL-2025-000168
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 14 th July 2026
Before
Peter MacDonald Eggers KC(sitting as a Deputy Judge of the High Court)
Between
TRANS TRADE RK SAClaimantSEBAT SHIPPING AND TRADING COMPANYDefendant
Mr Michael Nolan KC (instructed by W Legal Ltd) for ClaimantMr Sean O’Sullivan KC and Mr Thomas Steward (instructed by Schjødt LLP) for DefendantHearing Hearing dates: 29 th June 2026
Approved Judgment

Peter MacDonald Eggers KC :

[1]On 28th April 2026, I handed down judgment in these proceedings allowing an appeal by the Claimant (“the Charterers”), pursuant to section 69 of the Arbitration Act 1996, against an Arbitral Award (“the Award”) by which the Arbitral Tribunal (“the Tribunal”) had allowed the claim for demurrage made by the Defendant (“the Owners”) under a voyage charterparty concluded on 9th April 2022 (“the Charterparty”) to carry a cargo of Ukrainian origin barley in bulk (“the Cargo”) on a voyage from Constanta in Romania to Brake in Germany on board the vessel Sebat (“the Vessel”).[2]Having decided the appeal in favour of the Charterers, an issue arose whether the Owners’ additional or alternative claim under Clause 11 of the Charterparty should be remitted to the Tribunal.[3]As mentioned in paragraph 102 of my earlier judgment, I had circulated a draft judgment to the parties, prior to handing down the judgment. In that draft, I had sought to dispose of this issue of whether to remit the Clause 11 claim. However, upon receipt of further written submissions, I decided that the Court should defer any determination of this issue of remission until after I had heard further oral argument by the parties. I then revised the draft judgment resulting in the version which was then handed down.[4]Unfortunately, in the first instance, my earlier draft judgment had been mistakenly published and was, I understand, reported by some law reporting agencies. The correct (revised) judgment therefore replaced the earlier draft, was filed in the National Archives and has been published by a number of law reporting agencies. I mention this in order to ensure that before any reference might be made to the published version of the earlier draft judgment, it is understood that it is only the handed-down version of the judgment - in which the Clause 11 remission issue was not determined - to which reference might properly be made.[5]I have now heard the parties - Mr Sean O’Sullivan KC (with Mr Thomas Steward) on behalf of the Owners and Mr Michael Nolan KC on behalf of the Charterers - on the question whether the Owners’ claim under Clause 11 should be remitted to the Tribunal for determination. In dealing with this issue, I have proceeded on the basis that I would consider this issue afresh.[6]Having considered the parties’ submissions, I have decided that the Clause 11 claim is not to be remitted to the Tribunal.

The factual background

[7]The Charterparty as evidenced by a recap dated 9th April 2022 incorporated the Synacomex 2000 form (Continent Grain Charterparty) including Clause 11 which provided (with emphasis added) that:
“11. Fumigation Charters have the liberty to fumigate the cargo on board at loading and discharge port(s) or places en route at their risk and expense. Charterers are responsible for ensuring that Officers and Crew as well as all other persons on board the Vessel during and after the fumigation are not exposed to any health hazards whatsoever. Charterers undertake to pay Owners all necessary expenses incurred because of the fumigation and time lost thereby shall count as laytime or time on demurrage. When fumigation has been effective at loading port and has been certified by proper survey or by a competent authority, Bills of Lading shall not be claused by Master for reason of Insects having been detected in a cargo prior to such fumigation …”
[8]Having loaded the Cargo, which was fumigated on completion of loading, at Constanta, the Vessel proceeded to Brake where, on Tuesday 10th May 2022 at 1000 hours, at the end of the sea passage, the Vessel’s Master tendered a Notice of Readiness (“the NOR”) at the Brake pilot station. Because the NOR was tendered before the Vessel was an “arrived ship”, the Tribunal held that the NOR was invalid (the Award, para. 61). No further notice of readiness was tendered by the Owners thereafter.[9]The Vessel at first anchored and then, on 13th May 2022, proceeded to a berth. On 14th May 2022, the Vessel’s hatches were opened in preparation for discharge of the Cargo. However, tests for gas showed that the levels of phosphine (which was used in the fumigant) were substantially in excess of the levels at which the port would permit discharge. The Vessel was ordered to leave the berth and to return to the anchorage on the same day. Despite ventilation of the holds at the anchorage, the phosphine levels remained high for a considerable period of time. The phosphine levels were still substantially above the recommended, acceptable and safe levels. The Vessel did not berth again until 27th July 2022, and upon further testing the Brake authorities permitted the Vessel to discharge in stages. The Vessel completed discharge on 30th July 2022.

The Award

[10]The Tribunal made the Award on 24th March 2025. In that Award, the Tribunal upheld the Owners’ claim for demurrage at Brake under the Charterparty, and was unable to reach a conclusion as to why the fumigant did not disperse more quickly (the Award, para. 155).[11]As regards the claim under Clause 11 of the Charterparty, the Tribunal recorded the issue and the parties’ arguments (referring to the Owners as “the Claimant” and the Charterers as “the Respondent”). During the hearing, I was also referred to extracts from the parties’ written submissions in the arbitration. As they were extracts, I did not feel entirely comfortable in treating them as a complete account of the parties’ arguments. That said, I consider the submissions in the extracts I have seen are reflected in the Tribunal’s own summary of the parties’ arguments.[12]The Tribunal’s account of the issues and arguments was set out in the Award as follows:
“The Ventilation Issue 68. We consider this issue in the context of the Claimant’s demurrage claim at Brake, namely whether laytime or demurrage was interrupted by the Claimant’s breach or fault. Our analysis and findings also go to the Claimant’s claims for indemnity and damages and the Respondent’s Counterclaim (Sections C and E below) … 70. Both Parties said that the other should bear liability for the delay. The Vessel was ordered to leave the berth because when her hatches were opened in anticipation of discharge, the phosphine levels in the Cargo were way above the safety limit acceptable to the local authorities for stevedore discharge. The Respondent said that the Claimant had failed to ventilate the Vessel properly before she berthed and that that failure had continued through June and July, so that demurrage was interrupted by causes for which the Claimant was contractually responsible. The Claimant said that it had ventilated properly and that it was for the Respondent to prove an exception to the running of the demurrage which had commenced by the time the Vessel had arrived at Brake; but that to the extent that it needed to show a cause, the high levels of phosphine were caused directly by the fumigation that had taken place at Constanta, and the Respondent was liable either in breach or by way of an indemnity for the consequences … Ventilation and PPM Levels: A Summary 149. The gas emission levels of the Cargo in all four holds continued to be far higher (albeit not uniformly so) not only than was acceptable for discharge in Brake but also far higher than anyone expected - the Parties, the fumigators, and with hindsight, the Parties’ experts. We conclude that there was no decisive or actionable failure by the crew to ventilate the Cargo at the relevant periods during the approach to Brake, or at the berth in May, or during the period afterwards at anchorage. The ppm levels must therefore have remained as high as they did for another reason. 150. On this view the Respondent has not established that the Claimant was at fault within the terms of the Charter provisions such as to interrupt the running of demurrage at Brake. We are also satisfied that the Claimant has done enough to establish that it was not negligent. Possible Alternative Causes 151. The Parties spent a great deal of time examining alternative possible causes, not least because the Claimant would need to prove breach by the Respondent in order to succeed in its claim for damages. Various theories were considered, which ultimately required us to address the same question, namely whether the fumigators had been negligent. 152. The first, put forward by Dr Sheard, was the “cold cargo” theory. A second and third, also put forward by the Claimant, were that the fumigators had used too much fumigant or could have adopted alternative methods of fumigation. In Closing submissions the Claimant submitted to us that it considered the “cold cargo” theory to be the most likely explanation but stated that, if we preferred a different explanation, that worked just as well since, absent the hatches never having been opened (which no long formed part of the Respondent’s case), “it [was] difficult to see how the problems at Brake can be explained without reference in some way to the job done by the fumigation contractor”. 153. The second theory was swiftly dismantled by Mr Rice and ultimately conceded by the Claimant, and we say no more about it here. The first occupied more time. We referred to it earlier. Dr Sheard suggested that because the Cargo had been stored in Ukraine throughout the local winter before it was transported to the Vessel and loaded, it was cold – so cold that after it was loaded and fumigated, the fumigation tablets continued to emit gas for far longer than expected. 154. Mr Rice took issue with that theory and so do we. There was no evidence that the Cargo was abnormally cold on loading or what its temperature was. Neither the quality surveyors nor the fumigators at Constanta commented that the Cargo was unduly cold. Neither the Master nor the Chief Officer reported anything about the Cargo being cold at the time of loading. Neither did the surveyors who attended at the anchorage at Brake. As Mr Rice pointed out, one of those surveyors was a fumigator. He would have noticed and understood the implications of an abnormally cold grain cargo. Mr Rice spoke to them and they told him that they remembered nothing of significance about this. The Claimant criticised Mr Rice for offering hearsay evidence and for stepping outside his remit, but we accepted what he reported and we found it helpful. 155. Speculation as to whether alternative means of fumigation might have been more appropriate were no more than that … Thus, at the end of the day, we are left without a certain and unassailable answer as to why the phosphine gas in the fumigant did not disperse more quickly than it did. But for the reasons above we have concluded that there was no actionable fault by the Claimant regarding ventilation or cargo care. Nor do we consider any negligence by the fumigators to have been established, so as to amount an actionable breach by the Respondent. Testing and Co-operation … 162. In conclusion on this part of our award, therefore, we find that despite an admirable presentation of its case, the Respondent has not established that the Claimant was in actionable breach of the Charter such as to stop or interrupt the running of laytime and demurrage … Demurrage at Brake - Determination 166. For the reasons set out above, we accordingly find that the Claimant is entitled to demurrage at the discharge port of Brake in the reduced amount of USD 840,017.19. … C. Implied Indemnity / Damages for Delay 168. In Claim submissions, under the heading “Damages Claim”, the Claimant claimed an indemnity for time lost / all delays incurred as a result of the ventilation issue, alternatively damages for a breach by the Respondent of its obligations to carry out fumigation with reasonable skill and case [sic] and/or in accordance with Clause 11 of the Charter. Under this head, the Claimant claimed damages for its loss of earnings under its intended follow-on charter for the period 19 May to 18 July 2022 in the amount of USD 1,080,000 and loss of earnings at the market rate from 19 July until 30 July in the amount of USD 214,500, a total of USD 1,294,500, with credit to be given for any sums awarded by way of demurrage. By Closing submissions, the Claimant framed this claim as a claim for an indemnity in circumstances where the Respondent undertook to pay all the necessary expenses incurred because of the fumigation, alternatively the fumigation had been undertaken in breach of Clause 11. 169. At this stage, it became apparent that a threshold legal question arose in relation to the damages claim, namely whether the legal remedy of liquidated damages for the delay, in the form of demurrage, liquidated all the Claimant’s claims or only the demurrage claim. We accordingly address this threshold question first, before considering the indemnity / damages claim itself. 170. Relying upon Inverkip Steamship Co Ltd v Bunge & Co [1917] 2 KB 193 and The Eternal Bliss [2020] 2 Ll. Rep 419, it was the Respondent’s case that this further claim was a claim for damages suffered by reason of the detention of the Vessel, in respect of which the Parties had agreed that damages were to governed by the demurrage provisions of the Charter. 171. The Respondent referred us particularly to paragraph 38 of the latter judgment which in turn referred to the former judgment as being authority for the proposition: “if the [owner’s] claim was in substance, though not in form, a claim for detention of the vessel, the special damage here claimed for would not be recoverable. Demurrage on any view liquidates the damages, and therefore is the owner’s only remedy, “for detention of the vessel” beyond the laytime; and that is so even if that detention results from (or also from) some breach of contract other than the failure to load or discharge (as the case may be) at the required rate”. 172. In response, the Claimant relied on paragraph 52 of the Court of Appeal’s judgment in The Eternal Bliss to submit that the Respondent was wrong to say that its further claim was liquidated by demurrage as it was relying on the separate and distinct breach referred to above. 173. In a final submission on this legal point, the Respondent maintained its position on the basis that The Eternal Bliss was not authority for the proposition that where there are two separate breaches, damages for detention are not liquidated by demurrage. Rather, the question in that case had been whether a party could recover damages for detention and damages for cargo damage where there had been a single breach (of failing to discharge within the laydays). 174. The Respondent put it to us, and we accept, that it was common ground that where damages other than for detention were caused by a separate breach, damages in addition to demurrage could be recovered. Similarly, if the only damages claimed were for detention, as was the case here, damages in addition to demurrage could not be recovered. This latter proposition had been established in Inverkip and had not been overturned by The EternalBliss …”
Ventilation and PPM Levels: A Summary Possible Alternative Causes Testing and Co-operation Demurrage at Brake - Determination

C. Implied Indemnity / Damages for Delay

[13]I make the following observations based on my reading of the above extracts from the Award:(1) The ventilation issue was treated as relevant to both of the Owners’ claims for demurrage and under Clause 11 (para. 68 of the Award).(2) The high levels of phosphine in the cargo holds of the Vessel appear to have been treated by the parties as the cause of the delay at Brake (para. 70 of the Award).(3) The Tribunal, having considered the evidence, could not determine the reason why the phosphine gas in the fumigant did not disperse more quickly and found that neither the Owners nor the Charterers were proven to be responsible for any actionable fault in this respect (para. 155 of the Award).(4) The Owners’ claim under Clause 11 of the Charterparty was summarised in para. 168 of the Award (to which both parties drew the Court’s attention). The Owners’ claim as summarised in that paragraph was described by the Tribunal as follows: (a) Initially, as a claim for an indemnity for time lost and all delays incurred as a result of the ventilation issue, alternatively as damages for a breach by the Charterers of their obligations (under Clause 11) to carry out fumigation with reasonable skill and care. The object of the claim under Clause 11 was the indemnification of the Owners for time lost and loss of earnings (with credit to be given for sums awarded by way of demurrage). (b) Ultimately, by the time of the Owners’ closing submissions, as a claim for an indemnity in circumstances where the Charterers undertook to pay all the necessary expenses incurred because of the fumigation, alternatively the fumigation had been undertaken in breach of Clause 11.(5) Insofar as a shipowner’s claim is for loss caused by the detention of the chartered vessel, the Tribunal held (at para. 170-174) that the shipowner was confined to its claim for demurrage, which liquidated the damages caused by the detention of the vessel; this is so even if the detention was the result of a separate breach of contract by the charterer. If, however, the claim for damages is other than in respect of detention, then damages in addition to demurrage could be recovered.[14]The Tribunal disposed of the Owners’ claim under Clause 11 as follows:
“175. On the basis of the above, following the authorities to which we have been referred, the question for us to determine is whether the Claimant’s further claim for an indemnity / damages is a claim loss arising out of the detention of the Vessel. We consider that it is. 176. In our view, a failure to fumigate properly, even if proven (which we do not find to have been the case for the reasons set out above - there is insufficient evidence before us to make any findings in relation to the fumigation undertaken at Constanta), could not itself cause the follow-on Charter to be lost. Rather, it would have caused the detention of the Vessel, for which the Claimant has contractually agreed to be compensated by contractual demurrage. 177. In accordance with the above, we find that the Claimant’s further claim is a claim for an indemnity or damages for detention to the Vessel, that such claim has been liquidated by the demurrage already awarded and that this further claim fails accordingly.”
[15]Accordingly, in this determination, the Tribunal found that:(1) The Owners’ claim under Clause 11 arose out of the detention of the Vessel.(2) Any “failure to fumigate properly” on the part of the Charterers, even if proved, would have caused the detention, but not the loss of the follow-on charter, and any damages for detention was confined to the claim for contractual demurrage.(3) The additional claim under Clause 11 is a claim for detention of the Vessel and is liquidated by the demurrage already awarded and so the claim failed.[16]It is unclear to me whether the Tribunal found that the Vessel’s detention was “because of the fumigation” within the meaning of Clause 11. However, on a fair reading of the Award, it seems to me that the phosphine levels in the fumigant were the reason for the Vessel not being permitted to discharge on 14th May 2022 and that the phosphine levels were at a safer level to permit discharge from 27th July 2022. It would follow that, insofar as the phosphine levels in the Vessel’s holds as a result of the fumigant delayed the discharge of the Cargo for the entirety of that period of time, it could be said that the detention of the Vessel was “because of the fumigation”.[17]However, the phosphine levels might have dispersed earlier than 27th July 2022. As the Owners fairly recognised in their submissions, “The Owners have to accept that, after the fumigant had dispersed and discharge could commence, time could no longer be said to be lost as result of the fumigation”. The Owners added that “The Tribunal will now have to make a factual finding about how much time was lost at Brake as a result of the fumigation, which will be a different and lesser period from the “ordinary” demurrage period which they had awarded in their Award, which ran until completion of discharge operations” (para. 22 of the Owners’ skeleton argument).

The Arbitration Claim under section 69 of the Arbitration Act 1996

[18]On 15th April 2025, the Charterers issued an Arbitration Claim Form seeking permission to appeal on the questions of law relating to the Tribunal’s decision upholding the Owners’ claim for demurrage.[19]On 13th October 2025, Dias J granted permission to appeal pursuant to section 69 of the Arbitration Act 1996.[20]On 3rd December 2025, the Owners’ solicitors wrote to the Charterers’ solicitors as follows:
“Whilst Owners maintain that the Tribunal's Award is correct and are prepared to defend the Appeal … we consider that one possible / likely outcome of the Appeal is that the dispute will have to be remitted back to the Tribunal in any event. This is because: … 2. If the Court or Tribunal was to determine that Owners’ claim for demurrage has not succeeded, then it will be necessary for the Tribunal to determine Owners’ alternative claim for an indemnity for the waiting time under Clause 11. That is because in their Award the Tribunal decided that it was not necessary for them to decide the alternative claim under Clause 11 given Owners’ demurrage claim had succeeded, but if the demurrage claim does not succeed then it will be necessary for the Tribunal to determine that issue in any event. Given the above, we write to propose that the parties avoid the cost of the appeal and agree by consent that the issue of waiver should go back to the Tribunal to make further findings of fact, as well as determining the alternative Clause 11 claim if necessary…”
[21]On 10th December 2025, the Charterers’ solicitors replied to the Owners’ proposal as follows:
“… As to the proposal made in that message, with respect, we do not consider it likely that the court would remit the award to the tribunal on either of the bases suggested by you. Even if the matter were to go back to the tribunal, we do not think it would be helpful for it to do so without a decision of the court making it clear that the tribunal’s understanding of The Happy Day was incorrect …”
[22]On 17th December 2025, the Owners’ solicitors responded as follows:
“As such, we reiterate Owners’ proposal of 3 December 2025 that the parties avoid the unnecessary cost of the appeal and agree by consent that the issue of waiver should go back to the Tribunal to make further findings of fact, as well as determining the alternative Clause 11 claim if necessary. Should you reject our proposal, we reserve the right to refer to this email on the question of costs in due course.”
[23]It is plain that, after permission to appeal was granted, the Owners had indicated that they considered the clause 11 claim should be remitted, albeit as part of a proposal to dispense with the appeal.[24]In their skeleton argument opposing the Charterers’ appeal under section 69 of the Arbitration Act 1996, the Owners submitted that:80. … The Owners said that, if they were not already entitled to recover in respect of the delay caused by the fumigation as demurrage (i.e. pursuant to the basic laytime and demurrage provisions of the C/P), they were entitled to do so pursuant to clause 11.81. That alternative claim was not separately addressed by the Tribunal because they were already awarding demurrage for the whole of the relevant period (i.e. from 14 May until 27 July). The Tribunal did award expenses incurred at the discharge port (see paragraphs 181 - 182 of the Award [2/52]). However, they rejected the Owners’ claim for earnings lost in this period (which claim exceeded, but gave credit for, the claim for demurrage), on the basis that the loss caused by the detention was already liquidated by the demurrage which the Tribunal was awarding (see paragraph 177 of the Award [2/51]).82. The Tribunal’s analysis as to what was payable under clause 11 stopped there. They did not have to consider whether the Owners would have a claim under clause 11 for waiting time / demurrage in respect of the long period while the Vessel was waiting for the fumigant to disperse, if an invalid NOR meant that time would not otherwise run. That issue did not arise, because they had already decided that time was running by virtue of the Happy Day point. Obviously, if the appeal succeeds, that alternative claim will also need to be remitted to the Tribunal, so that they can (if necessary) determine the scope of clause 11 and how much time was lost because of the fumigation. This would be a scenario where that claim would have been rejected/ignored by the Tribunal on a ground which was undermined by the appeal. For the avoidance of doubt, it is accepted that this claim cannot be relied upon as an alternative ground on which the Award can be upheld, because it would involve a slightly different calculation of the sums due during the relevant period.”[25]As mentioned above, I handed down judgment allowing the Charterers’ appeal on 28th April 2026.[26]The issue which I must determine is whether the Owners’ Clause 11 claim should be remitted to the Tribunal as a consequence of the Charterers’ appeal being allowed.[27]There are two separate questions touching this issue:(1) Whether remission is appropriate having regard to the parties’ substantive case advanced before the Tribunal. In Trans Trade RK SA v State Food & Grain Corporation of Ukraine [2025] EWHC 1803 (Comm); [2026] 1 WLR 305, at para. 21, Andrew Baker J described this as an issue of “admissibility”.(2) Whether remission is permissible in circumstances where the Owners have neither sought to challenge the Award by way of an appeal under section 69 nor filed a Respondent’s Notice.

The substantive issue: the argument advanced in arbitration

[28]Section 69(7) of the Arbitration Act 1996 provides that:
“On an appeal under this section the court may by order— (a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s determination, or (d) set aside the award in whole or in part. The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.”
[29]Upon a successful appeal from an arbitral award on a question of law, the Court should consider whether the Award should be remitted to the Tribunal. This is because the parties have agreed to have their dispute resolved by arbitration, not by the Court (Maurice J Bushell & Co v Born [2017] EWHC 2227 (Ch), para. 23-26).

The parties’ submissions

[30]Mr O’Sullivan KC submitted on behalf of the Owners that:(1) In the underlying arbitration, the Owners’ primary case was that they were entitled to demurrage for the period from 14th May to 27th July 2022. That claim was successful in the arbitration. The Tribunal concluded that the Owners were entitled to demurrage, with time running from the opening of the Vessel’s holds until the end of discharge operations.(2) The Owners had advanced an alternative argument in the arbitration that they were entitled to recover in respect of delay (and as well as other costs and expenses) under Clause 11 of the Charterparty, which was said to extend to loss of earnings under an intended follow-on charter for the period 19th May to 18th July 2022, and loss of earnings at the market rate from 19th July until 30th July 2022, with credit to be given for any sums awarded by way of demurrage.(3) The Owners argued in the arbitration that, if they were not already entitled to recover in respect of the delay caused by the fumigation pursuant to the basic laytime and demurrage provisions of the Charterparty (and the Court has now held that the Owners are not so entitled), the Owners were nevertheless entitled to recover for the time lost pursuant to Clause 11.(4) The Tribunal’s analysis as to what was payable under Clause 11 stopped there. They did not have to consider, and did not consider, whether the Owners would have a claim under Clause 11 for waiting time / demurrage in respect of the long period while the Vessel was waiting for the fumigant to disperse, if an invalid NOR meant that laytime/demurrage would not otherwise run.(5) That issue did not arise, because the Tribunal had already decided that laytime/demurrage was running. But the decision of the Court on the appeal undermines that conclusion, such that the Owners’ alternative Clause 11 argument now must be determined.(6) Remission is the default remedy if the Court finds there has been an error of law: it is only where the Court is satisfied that it would be inappropriate to remit the matters in question to the arbitrators for their reconsideration that an Award may be set aside (section 69(7)).(7) The burden therefore rests on the Charterers (as the person seeking relief other than remission) to satisfy the Court that remission is inappropriate (Russell on Arbitration (24th ed.) at para. 8-172).(8) The Owners could not, and were not seeking to, uphold the Award on that ground. Clause 11 only becomes relevant if the Award cannot be upheld and the Tribunal’s conclusion that laytime/demurrage ran (in effect) as a result of opening the hatches was wrong in law.(9) The Clause 11 point arises here as a necessary consequence of the Court’s conclusion that the appeal against the award of demurrage should be allowed.[31]Mr Nolan KC on behalf of the Charterers submitted that:(1) The Owners now seek remission to the Tribunal to reconsider a different claim, one for damages or for an indemnity under Clause 11 of the Charterparty.(2) The Owners’ claim under Clause 11 in the arbitration was one for damages in the amount of the earnings under a follow-on fixture said to have been lost by them as a consequence of the delay at Brake. If it were correct, as the Owners submitted in the alternative in paragraph 82 of their skeleton for the appeal hearing, that the Tribunal ignored the Owners’ claim for damages for delay under Clause 11, their remedy was first to apply for relief under section 57(3)(b) of the Arbitration Act 1996 for the Tribunal to make an additional award in respect of that claim and (if appropriate) to apply under section 68(2)(d) for remission on the grounds that the Tribunal had failed to deal with the issue;(3) Since, in fact, the Tribunal did address the claim advanced for damages for delay under Clause 11 and dismissed it, the Owners’ remedy, if they wished to challenge that decision was to seek permission to appeal. However, the application would have failed, because the Tribunal’s decision followed long-standing Court of Appeal authority in Inverkip Steamship Co Ltd v Bunge & Co [1917] 2 KB 193, and because the Tribunal found that it was unable to reach a conclusion on the facts as to the cause of the delay, that finding being one of fact and thus not open to appeal.(4) If, as the Owners now appear to be arguing, the Award should be upheld on the grounds that they were entitled to recover as damages or an indemnity a part of the sum awarded (wrongly) as demurrage by the Tribunal, and if they were not obliged to appeal in order to raise that argument, their remedy was to serve a Respondent’s Notice advancing that argument and seeking an order that the award be upheld on that basis. The argument would have been hopeless, because: (a) In determining whether or not to uphold the Award, the Court can only do so on the basis of errors of law by the Tribunal and it is not open to it to review the tribunal’s conclusions of fact. In the absence of a finding that the delay was caused by the fumigation and in the face of a finding that the Tribunal was not able to determine on the evidence what caused the delay, it would not have been open to the Court to uphold the Award on the basis of Clause 11 (Cottonex Anstalt v Patriot Spinning Mills Ltd [2014] EWHC 236 (Comm) [2014] 1 Lloyd's Rep 615, para. 27-35). (b) The Owners did not advance an argument before the Tribunal that they were entitled to recover demurrage pursuant to clause 11. Their argument under Clause 11 was that they were entitled to damages for loss of the follow-on fixture by reason of the Owners’ breach of Clause 11. If, however, the argument was advanced before the Tribunal, the Tribunal did not address it, in which case the Owners’ remedy, if any, was under sections 57 and 68 of the 1996 Act.(5) In its Award, the Tribunal recorded the parties’ respective submissions as to the cause of the delay between 10th May and 27th July 2022 (which it referred to as “the Ventilation issue”). The Charterers argued that the cause of the delay was the Owners’ failure to ventilate properly; the Owners argued that the high levels of phosphine found in the holds were caused directly by the fumigation that had taken place at Constanta, so that the Charterers were in breach or liable by way of indemnity for the consequences. The Tribunal considered the parties’ respective cases on the cause of the delay at length and found that neither side’s case was made out and that it was left without a clear answer to the question.(6) In summarising the Owners’ argument at para. 168 of the Award, the Tribunal did not say that the Owners claimed damages or an indemnity by way of demurrage pursuant to Clause 11 during the period of delay.(7) The Tribunal dealt with the claim under Clause 11 under para. 175-177 of the Award. In light of the Owners’ argument (which appears to be that the claim for an indemnity or damages failed only because the Tribunal had awarded them demurrage for the delay at Brake), it is important to stress what the Tribunal meant when it said that the claim failed because it had been “liquidated by the damages already awarded”. As is apparent from para. 169 of the Award, that phrase was used to describe what the Tribunal referred to as “A threshold legal question, namely whether the legal remedy of liquidated damages for the delay in the form of demurrage, liquidated all the Claimant’s claims or only the demurrage claim”. In answering that question, the Tribunal applied well-established case law and accepted the submission that since this claim for damages or an indemnity under Clause 11 was one for damages suffered by reason of the detention of the Vessel, in respect of which the parties had agreed that damages were to be governed by the demurrage provisions in the Charterparty, such damages were not recoverable.(8) So, in short, the Tribunal rejected the Owners’ clause 11 claim (which was for a sum about US$450,000 more than their claim for demurrage), because the Owners had failed to prove a failure by the Charterers to fumigate properly, and because the claim was one for detention and therefore governed by the demurrage provisions in the Charterparty with the consequence that damages for detention were not recoverable.(9) The Owners now argue that the claim should be upheld in a smaller amount because, they say, they should have been awarded damages or an indemnity at the demurrage rate for the period of the delay caused pursuant to Clause 11. The basis for that argument appears to be that the reason why the Tribunal concluded that their claim under Clause 11 failed was that it had awarded them demurrage, with the consequence that the Court’s decision on the question as to when laytime started (and the consequent decision that demurrage was not recoverable) undermined that part of the Tribunal’s decision. However, the Tribunal’s decision was that damages for delay could not be claimed under Clause 11, because the parties had agreed a demurrage regime to deal with such claims, the Charterers were not in breach so far as fumigation was concerned and the Tribunal was unable to determine on the evidence what caused the relevant period of delay. The fact that the Owners’ claim for demurrage failed because the Vessel’s master failed to serve a valid NOR, in no way undermines that decision or the basis for it.

Decision

[32]Section 69(7) of the Arbitration Act 1996, as quoted above, empowers the Court to remit an award to the tribunal upon an appeal under section 69 and indeed the Court must not set aside or vary the award unless “it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.”[33]In Icon Navigation Corp v Sinochem International Petroleum (Bahamas) Co Ltd [2002] EWHC 2812 (Comm); [2003] 1 All ER (Comm) 405, the owners were granted permission to appeal on a point of construction of the charterparty; the charterers objected that the tribunal was wrong to deal with that issue of construction, because of an irregularity (it had been raised too late, after the evidence had closed) and argued that the Court should uphold the award on the irregularity issue, pursuant to section 69(7), even though it had allowed the owners’ appeal on construction. At para. 22, Moore-Bick J dismissed this argument and explained the purpose of section 69(7):
“Section 69(7) of the Act forms part of the statutory code providing for appeals on questions of law and as such it sets out the remedies available to the court following the hearing of an appeal. No doubt the court has a measure of discretion when it comes to deciding what order is most appropriate to give effect to its decision. For example, following a successful appeal the court might decide to vary the award itself or remit it to the tribunal for reconsideration. However, section 69(7) must be read in the context of section 69 as a whole. The intention of the legislation is that the powers of the court under this subsection should be exercised in a manner that will best give effect to its conclusions on the issues of law that arise on the appeal, including any issues of law raised by the defendant under paragraph 6.12.(3) [now CPR PD62, para. 12.6(2)] of the practice direction seeking to uphold the award. It does not, in my view, give the court a wider discretion or allow it to take into account matters outside the scope of the appeal itself. Thus if the court’s decision on questions of law means that the award cannot be upheld, I do not think that it has a discretion under this subsection to affirm the award on extraneous grounds such as an irregularity in the conduct of the proceedings. Any complaint of irregularity must therefore be pursued by some other route.”
[34]Remission of an arbitration award is a direction by the Court that the arbitral tribunal (whose office has been discharged in respect of the particular issue disposed of by the award) should reconsider the relevant issue in light of the Court’s correction of any legal finding made by the tribunal; it is not an invitation to address the reference afresh or any wider or different issue (The Avala (No. 2) [1996] 2 Lloyd's Rep 311, 316; Alegrow SA v Yayla Agro Gida San Ve Nak AS [2020] EWHC 1845 (Comm); [2021] 1 Lloyd's Rep 565, para. 76).[35]Remission might be directed by the Court for a number of reasons, all of them resulting from the successful appeal on a point of law from the decision of the arbitral tribunal. For example,(1) If, in order to determine the point of law which arises on appeal, the Court requires the arbitral tribunal to make further findings of fact in order to determine the true basis of the tribunal’s conclusions (The Happy Day [2002] EWCA Civ 1068; [2002] 2 Lloyd's Rep 487, para. 55).(2) There is something further for the tribunal to consider and upon which its judgment could be exercised afresh, for example where issues in dispute relating to the point of law which has been dealt with by the Court require determination in light of the evidence before the tribunal(Alegrow SA v Yayla Agro Gida San Ve Nak AS [2020] EWHC 1845 (Comm); [2021] 1 Lloyd's Rep 565, at para. 76-77; see also Islamic Republic of Iran Shipping Lines v Zannis Compania Naviera SA (The Tzelepi) [1991] 2 Lloyd’s Rep 265, 269).(3) Claims or counterclaims which were rejected by the arbitral tribunal, but on the basis of conclusions which have been undermined on appeal, fall to be remitted to the tribunal for further consideration (Alegrow SA v Yayla Agro Gida San Ve Nak AS [2020] EWHC 1845 (Comm); [2021] 1 Lloyd's Rep 565, para. 79-86).[36]On the other hand, an award will not be remitted by the Court in the following circumstances:(1) If an issue was not canvassed or argued before the arbitral tribunal by reason of one party not advancing a case before the Tribunal, remission would not be appropriate in those circumstances; it is not appropriate to allow a party to present a case to the tribunal not previously canvassed (Ramburs Inc v Agrifert SA [2015] EWHC 3548 (Comm); [2016] Bus LR 135, para. 11; Alegrow SA v Yayla Agro Gida San Ve Nak AS [2020] EWHC 1845 (Comm); [2021] 1 Lloyd's Rep 565, para. 76, 78). Therefore, if the relevant legal argument was not advanced by the respondent in the arbitration proceedings, remission does not provide an opportunity for further findings of fact to be made in support of such a legal argument (Olam Global Agri Pte Ltd v Holbud [2025] EWHC 3187 (Comm), para. 139).(2) If the Court is able to answer how the correct legal principles should be applied to the facts of the case, there is no need for remission and the Court is able to vary the Award accordingly (Fence Gate Ltd v NEL Construction Ltd [2001] 82 Con LR 41, para. 92-93; The Johnny K [2006] EWHC 134 (Comm); [2006] 1 Lloyd's Rep 666; Fehn Schiffahrts GmbH & Co KG v Romani SpA [2018] EWHC 1606 (Comm); [2018] 2 Lloyd's Rep 385).(3) If remission would serve no useful purpose, for example if there is no reason to think the tribunal would come to a different decision, remission may be refused (Alegrow SA v Yayla Agro Gida San Ve Nak AS [2020] EWHC 1845 (Comm); [2021] 1 Lloyd's Rep 565, at para. 76).[37]With these principles in mind, I ask myself what impact, if any, the Court’s decision in allowing the Charterers’ appeal had on the Owners’ Clause 11 claim:(1) The Owners claimed demurrage for the delay in discharge under the laytime/demurrage provisions of the Charterparty. Although that claim was upheld by the Tribunal, it was dismissed by the Court.(2) The Owners’ claim under Clause 11 sought an indemnity or damages for loss of earnings (and expenses) as well as, at least initially, for time lost by the detention of the Vessel, whether or not there was a breach of duty by the Charterers. The Tribunal held (I consider correctly) that the demurrage provisions of the Charterparty liquidated any losses caused by the detention of the Vessel and so any claim for time lost by the detention of the vessel was limited to demurrage.(3) Accordingly, what was left was the Owners’ claim for demurrage based on the ordinary laytime/demurrage provisions of the Charterparty and/or Clause 11. This is clear from the terms of Clause 11 which provides that “Charterers undertake to pay Owners all necessary expenses incurred because of the fumigation and time lost thereby shall count as laytime or time on demurrage”. This means that time lost by reason of the detention of the Vessel caused by “fumigation” is to be treated as laytime/demurrage. For that purpose, one would have to refer to the laytime and demurrage provisions of the Charterparty to determine the claim.(4) As the Tribunal disposed of the ordinary demurrage claim in favour of the Owners, the Tribunal considered that there was no need to resort to Clause 11 and so the Tribunal dismissed that claim. If, however, the Tribunal had dismissed the demurrage claim (as the Court considered should have been the case), then - as I understand the Owners’ position - the Owners would have sought to claim demurrage by reason of Clause 11.[38]In these circumstances, it would have been open to the Owners in principle to pursue this issue - namely, whether the Owners’ claim for time lost by reason of fumigation was recoverable under Clause 11 even though demurrage was not recoverable under the ordinary laytime/demurrage provisions of the Charterparty - as a result of the Court’s decision by means of remission to the Tribunal.[39]However, I find it difficult to conceive on what basis the claim for demurrage under Clause 11 would have succeeded, where the claim for demurrage under the laytime/demurrage provisions of the Charterparty ultimately failed. To my mind, this is an important consideration in determining whether remission should be ordered. Indeed, on this ground alone, I would have been inclined to refuse remission of the Award to the Tribunal.[40]If I am wrong and the Owners’ claim under Clause 11 is substantively different from the claim for ordinary demurrage, it seems to me that the appropriate recourse for the Owners was to seek to challenge the Tribunal’s decision to dismiss the Clause 11 claim by way of an application for permission to appeal under section 69 of the Arbitration Act 1996 (which I discuss below).

The procedural issue: Appeal or Respondent’s Notice

[41]The Charterers contended that there should be no such remission because either the Owners seek to vary the Award, in which case an application was required to be made under section 69 of the 1996 Act, or the Owners seek to uphold the Award on the grounds of the application of clause 11, in which case a Respondent’s Notice was required in accordance with CPR PD62, para. 12.6.[42]The Owners did not issue an application for permission to appeal under section 69 of the 1996 Act.[43]As to the Respondent’s Notice, CPR PD62, para. 12.6 and 12.7 provide that:
“12.6 A respondent who wishes to oppose an application for permission to appeal must file a respondent’s notice which - (1) sets out the grounds (but not the argument) on which the respondent opposes the application; and (2) states whether the respondent wishes to contend that the award should be upheld for reasons not expressed (or not fully expressed) in the award and, if so, states those reasons (but not the argument). 12.7 The respondent’s notice must be filed and served within 21 days after the date on which the respondent was required to acknowledge service and must be accompanied by a skeleton argument in support which complies with paragraph 12.2 above.”
[44]The Owners did serve a Respondent’s Notice, but it was not contended in that Respondent’s Notice that the Award should be upheld having regard to Clause 11 of the Charterparty. The Respondent’s Notice set out the grounds on which the Charterers’ application for permission to appeal was opposed, without reference to Clause 11 of the Charterparty. If and insofar as a Respondent’s Notice was required in respect of the Clause 11 claim, none has been served and no application was made for permission to serve the Respondent’s Notice late (as to which, see Cottonex Anstalt v Patriot Spinning Mills Ltd [2014] EWHC 236 (Comm) [2014] 1 Lloyd's Rep 615, para. 41-42).

The parties’ submissions

[45]Mr O’Sullivan KC submitted on behalf of the Owners that:(1) Paragraph 12.6 of CPR PD 62 sets out the requirements of what must be included in a Respondent’s Notice. It is therefore only where a party is seeking to contend that the Award should be upheld for reasons not expressed (or not fully expressed) in the Award, that the Respondent must set out the reasons.(2) The Owners could not ask the Court to uphold the Award in reliance on Clause 11. The Owners’ entitlement to demurrage thereunder would only be for “time lost thereby” (as a result of fumigation); that is what is deemed to “count as laytime or time on demurrage”. The Tribunal will now have to make a factual finding about how much time was lost at Brake as a result of the fumigation, which will be a different and lesser period from the “ordinary” demurrage period which they had awarded in their Award, which ran until completion of discharge operations.(3) In Trans Trade RK SA v State Food & Grain Corporation of Ukraine [2025] EWHC 1803 (Comm); [2026] 1 WLR 305, at para. 25, Andrew Baker J said obiter that a Respondent’s Notice was not required under CPR PD62 para 12.6 in such circumstances.(4) Any other result would be surprising and unfair, as remission is the default remedy under the Arbitration Act 1996 if the Court finds there has been an error of law: the Award may not be set aside, unless the Court is satisfied that it would be inappropriate to remit the matters in question to the arbitrators for their reconsideration (section 69(7)). There is no suggestion that the Court is limited in its consideration of this issue by the content of the Respondent’s Notice. It would be unhelpful and unfair to deprive the Owners of a substantive entitlement, on the basis that they did not recognise that they needed to waste their money and the Court’s time making a hopeless application for permission to appeal, simply in order for the default statutory remedy of remission when an appeal is allowed to remain available to the Court.(5) If the consequence of a lack of a Respondent’s Notice is going to be to deprive a Respondent to an appeal of the opportunity ever to seek a decision on their alternative case, on a purely procedural basis, that should be spelled out clearly in the Act or the Practice Direction.(6) The Tribunal decided that the claim for time under Clause 11 “has been liquidated by the demurrage already awarded and that this further claim fails accordingly” (the Award, para. 177). Until the Court’s judgment was promulgated allowing the appeal, the Owners did not say, and could not say, there was anything wrong with the Tribunal’s conclusion in that regard. On the contrary, it was obviously correct in that if demurrage is already being awarded on the ordinary basis for the period from opening hatches until completion of discharge, then any claim for “time lost” by reason of the fumigation has indeed “been liquidated by the demurrage already awarded”, and there would be no scope for any further claim in respect of that time and hence that claim must fail.(7) It is a necessary ingredient of seeking permission to appeal under section 69 that the decision is either obviously wrong, or of general public importance and open to serious doubt. It was not possible for the Owners to contend that any of those ingredients were present on the basis of the Tribunal's decision at the time that the NOR was valid and the Owners were entitled to the demurrage claimed: the Tribunal’s decision not to make any overlapping award under Clause 11 was not wrong, nor even open to doubt (it was obviously correct as the Award stood at that time). It was also not of any general public importance. Even if it were theoretically possible for the Owners to make an application, permission to appeal would inevitably have been refused on the basis of the Award as it stood at that time.(8) Nor could or should the Charterers have made a “protective” appeal (Icon Navigation Corp v Sinochem International Petroleum (Bahamas) Co Ltd [2002] EWHC 2812 (Comm); [2003] 1 All ER (Comm) 405).(9) The Charterers have based their arguments on the decision in Mitsui & Co (USA) Inc v Asia-Potash International Investment (Guangzhou) Co Ltd [2023] EWHC 1119 (Comm); [2024] 1 Lloyd's Rep 639. However, in that case, the respondent was seeking to argue that a contention “which was not deployed before the Board of Appeal” should be remitted to them for consideration as to whether they should exercise a discretion (which the Board of Appeal had not been told it had) about whether to award the indemnities sought (see para. 43, 78, 83, 87).(10) None of that is relevant to the present matter, where the Clause 11 issue was a claim which was expressly pleaded and raised before the Tribunal. Its failure before the Tribunal was as a consequence of the Tribunal’s conclusion regarding the NOR and its award of demurrage, which was challenged by the Charterers on this appeal. That conclusion has now been undermined by the Court’s decision as to the running of laytime/demurrage. The need to revisit the clause 11 issue is simply a consequence of the Court’s decision on The Happy Day question. It is not a new case, nor does it concern any distinct/freestanding issue, or the seeking of separate relief by the Owners.(11) In a case where the effect of the Court’s decision on the question of law is to undermine the Tribunal’s conclusions in some way, the proper course is to allow the Tribunal to work through the consequences, whether that takes the form of addressing alternative cases to which there was previously a good answer, re-working quantum, or looking afresh at interest or costs.[46]Mr Nolan KC on behalf of the Charterers submitted that:(1) An appeal on a discrete question of law does not lead to the reopening of the other issues in the arbitration (Van der Giessen-de-Noord Shipbuilding Division BV v Imtech Marine & Offshore BV [2008] EWHC 2904 (Comm); [2009] 1 Lloyd's Rep 273, para. 113). So far as those issues are concerned, the Arbitral Tribunal is functus officio and its conclusion unassailable unless the issue is reopened by virtue of the Court giving permission to appeal or the Respondent is able to uphold the Award on the basis of an argument raised in a Respondent’s Notice. The Owners neither sought permission to appeal, nor served a Respondent’s Notice seeking to uphold the Award on other grounds.(2) It is self-evident, and there is ample authority for the proposition, that a Respondent to a section 69 application should not be able to ambush the Claimant at the final hearing with new points. It is unfair to the Claimant, increases costs and is an inefficient use of court resources, as what has occurred in the present case demonstrates (The Agamemnon [1998] 1 Lloyd's Rep 675, 682-683).(3) CPR PD 62, para. 12.6 requires a Respondent’s Notice so as to prevent such unfairness (Trans Trade RK SA v State Food & Grain Corporation of Ukraine [2025] EWHC 1803 (Comm); [2026] 1 WLR 305, at para. A7-A8 of Appendix A; MRI Trading AG v Erdenet Mining Corporation LLC [2012] EWHC 1988; [2012] 2 Lloyd's Rep 465 (Comm), para. 39; Cottonex Anstalt v Patriot Spinning MillsLtd [2014] EWHC 236 (Comm) [2014] 1 Lloyd's Rep 615, para. 41-42; MUR Shipping BV v RTI Ltd [2022] EWHC 467 (Comm); [2022] 2 Lloyd's Rep 297, para. 49). These authorities demonstrate that the requirement to file a Respondent’s Notice, where the respondent wishes to contend that the award should be upheld on grounds not expressed in the award, applies both where the respondent contends that the award might be upheld by the tribunal on such grounds on remission or by the Court without remission. There is nothing in the wording of CPR PD 62, para. 12.6 differentiating between the two cases, and there is no reason so to differentiate as a matter of principle or policy. In both cases, the claimant should know what arguments it is going to have to meet.(4) Therefore, if the Owners wished to run the argument that the Award should be upheld (either by the Court or by the Tribunal on remission) for reasons not expressed or not fully expressed in the Award, it was incumbent on them to set that out in their Respondent’s Notice. They did not do so, and it is far too late for them now to seek permission (Cottonex Anstalt v Patriot Spinning MillsLtd [2014] EWHC 236 (Comm) [2014] 1 Lloyd's Rep 615, para. 41-42).(5) The Owners have relied on the decision of Andrew Baker J in Trans Trade RK SA v State Food & Grain Corporation of Ukraine [2025] EWHC 1803 (Comm); [2026] 1 WLR 305 in support of the argument that no Respondent’s Notice was required in this case. However, that argument misunderstood what Andrew Baker J said, in holding that the respondents were not entitled to the remission of a claim which had not been advanced before the tribunal. The judge distinguished between this substantive objection and a procedural objection based on the failure to serve a Respondents’ Notice. As to the procedural objection, the judge said that the provisions of CPR PD 62, para. 12.6 did not apply to the respondents’ argument (a) because they were not seeking to uphold the award for reasons other than those given by the Board; rather they were seeking to advance a different claim which had not been considered by the tribunal, and (b) because CPR PD 62, para. 12.6 did not apply in any event since the respondent did not oppose the application for permission to appeal so did not file a Respondents’ Notice. Although there had not been full argument on this issue, the judge held that the Practice Direction did not apply because of what might be considered a lacuna in the drafting of para. 12.6 in that: (i) the paragraph applies only when a respondent opposes a permission application, and (ii) the paragraph does not require a respondent to state that it will seek remission to the tribunal so that it can argue a different claim (which has not been argued before). The first of those considerations does not apply here. There is nothing in Andrew Baker J’s judgment to suggest that where a respondent does resist permission to appeal and does serve a Respondent’s Notice, it is not required to set out in that Notice the arguments it intends to advance at the hearing. As to the second consideration: (a) On the Owners’ case, they are not seeking remission to advance a new claim which had not been advanced before the Tribunal, rather they are seeking to have determined a claim which had been ignored or rejected by the Tribunal. If that is correct, their remedy was under sections 68 or 69. (b) In reality what the Owners are seeking to do is to uphold the Award in part on the grounds that they are entitled to demurrage under the terms of Clause 11. CPR PD 62, para. 12.6 quite clearly applies to that situation. The Practice Direction is generous to respondents in that it entitles them to seek to uphold awards even on questions of law which they have not raised before, providing that there are findings of fact in the award justifying that conclusion. Thus, if the point of law is raised in the Respondent’s Notice within the period required, the Court’s permission is not required to raise it. By comparison, the claimant is precluded from raising points of law that were not determined by the tribunal and, in any event, requires permission to argue any points of law it might be able to raise. There can be no possible justification for this profound asymmetry, save that CPR PD 62, para. 12.6 provides a basis for defending the claimant’s application, but not for the respondent seeking its own positive relief such as the variation or setting aside of aspects of the award, or remission of issues without itself satisfying the requirements for raising such arguments imposed by the Act. Were that not the case, any appeal would provide a respondent with carte blanche, without notice to the claimant, to seek remission to the tribunal on any issue of law. That would be entirely antithetical to the presumption of finality.

Decision

[47]Where the Owners’ claim under Clause 11 is for demurrage and is for an amount less than - and certainly no greater than - the amount of demurrage determined by the Tribunal to be recoverable by the Owners under the laytime/demurrage provisions of the Charterparty, I do not consider that an appeal (or challenge) would be the correct means of seeking to proceed under Clause 11 in the event that the Charterers’ appeal succeeded.[48]As I understood the position, the Owners’ claim under Clause 11 exceeded their claim for ordinary demurrage by some US$450,000, taking into account the claimed loss of earnings and other expenses. I do not understand the Owners to be seeking to revive their claim under Clause 11 in respect of any head of loss other than time lost by fumigation, based on demurrage.[49]If the Owners had sought to have their full claim under Clause 11 remitted to the Tribunal, that would have required an application for permission to appeal by the Owners under section 69. Similarly, if the Owners’ claim for time lost under Clause 11 was qualitatively different from the claim for ordinary demurrage, which I do not think it is, the appropriate recourse available to the Owners was to apply for permission to appeal under section 69, even if the amount recoverable for such a claim was less than the amount awarded by the Tribunal by way of ordinary demurrage. This is because the dismissal of the claim under Clause 11 by the Tribunal was the dismissal of an independent head of claim, irrespective of the reasons given by the Tribunal for the dismissal of the claim, and its treatment of that claim was either correct or incorrect as a matter of law. However, no application has been made by the Owners for permission to appeal.[50]My understanding, based on a review of the Award, is that the claim which the Owners wish to have remitted to the Tribunal is a claim for time lost (demurrage) by reason of “fumigation”. In those circumstances, the remaining question is whether remission of Clause 11 claim to the Tribunal should be permitted even though the Owners issued no Respondent’s Notice in respect of the Clause 11 claim.[51]The parties’ submissions relied heavily on the formulation of CPR PD 62, para. 12.6 and the interpretation of that Practice Direction in the authorities. I turn to the more prominent of those authorities before applying the relevant principles to the question at hand, namely whether, even if there were an admissible claim under Clause 11 to be remitted to the Tribunal, the Owners should be denied such remission in circumstances where they have not served a Respondent’s Notice in respect of the Clause 11 claim.[52]In MRI Trading AG v Erdenet Mining Corporation LLC [2012] EWHC 1988 (Comm); [2012] 2 Lloyd's Rep 465, Eder J referred to the decision of Moore-Bick J upon section 69(7) in Icon Navigation Corp v Sinochem International Petroleum (Bahamas) Co Ltd [2002] EWHC 2812 (Comm); [2003] 1 All ER (Comm) 405 quoted above in deciding not to remit an award and stated at para. 39, by reference to the final sentence of section 69(7):
“I accept that the position here is slightly different to the extent that Mr Moriarty QC is not suggesting that he would wish the matter to be remitted in order to put before the tribunal any fresh evidence or to advance new contentions before the tribunal. However, it does not seem to me that such difference is significant. Moreover, in my judgment, the approach urged by Mr Moriarty QC is not consistent with the scheme of the 1996 Act and the CPR in relation to arbitration appeals. In truth, the main thrust of Mr Moriarty QC’s submission is that the award should be remitted because the conclusion reached by the tribunal is (or at least may be) justified for reasons not set out in the award. However, a party who wishes to contend that an award should be upheld for reasons not expressed (or not fully expressed) in such award is required to file a respondent’s notice at the stage of the application for permission to appeal in accordance with CPR PD 62 Para 12.6. In my view, it would be wrong in principle and certainly “inappropriate” now to order remission on the basis of entirely speculative matters in respect of which the court has no material before it and which, if such matters were to be relied upon to seek to uphold the award, should have been included in a respondent’s notice served in accordance with the rules and within the appropriate time limits in opposition to the original application for leave to appeal …”
[53]In MUR Shipping BV v RTI Ltd [2022] EWHC 467 (Comm); [2022] 2 Lloyd's Rep 297, Jacobs J said at para. 45-50:
“45. As described above, the Charterers sought, in addition to supporting the tribunal’s analysis, to uphold the Award on a number of grounds which were not relied upon by the arbitrators. Before considering the parties’ arguments in more detail, it is appropriate briefly to describe the framework for the court’s decision on a section 69 application, in particular where a party seeks to uphold an award on different grounds. 46. Where leave to appeal has been given, the essential question is whether the tribunal has made an error of law, and if so what if any consequence flows from that error. Primarily, this involves consideration of the argument on the issue of law in relation to which leave to appeal has been given. 47. A respondent to an application under section 69 of the 1996 Act may, however, serve a respondent’s notice: para 12.6(2) of CPR PD 62. There is no leave requirement. This part of PD 62 is headed “Applications for permission to appeal” … 48. There is a degree of conflict in the authorities as to whether the requirement for a respondent’s notice applies only at the leave stage. In Cottonex Anstalt v Patriot Spinning Mills Ltd [2014] 1 Lloyd's Rep 615, Hamblen J considered (at paras 41-42) that notice to uphold for different reasons had to be given by the respondent at the permission stage, and that permission to rely upon such grounds should only rarely be given if raised subsequently. In Ramburs Inc v Agrifert SA [2016] Bus LR 135, para 10, Andrew Smith J took a different view, pointing out that a respondent did not have to oppose the application for leave to appeal - in which event there would be no opportunity to submit a respondent's notice. 49. It seems to me that the position is not wholly clear on the terms of para 12.6. I favour the view taken by Hamblen J: where - as is invariably the case on applications for permission to appeal under section 69 - a respondent has in fact opposed the application for permission, then it is indeed necessary for any reasons for upholding the award on different grounds to be set out in a respondent's notice. It is possible for those reasons to be supplemented, but (unless consented to) the court’s permission to make an amendment to the respondent’s notice is required. This approach is consistent with the overriding objective, and will enable the appellant to know, in advance of the appeal, the case that the respondent will advance in relation to upholding the award for reasons not expressed or not fully expressed in the award. The alternative approach results in a respondent being wholly unconstrained by any need to give notice to the appellant, with the consequence that new arguments can be raised at the hearing itself or indeed (as has happened to some extent in the present case) subsequent to the hearing. 50. However, irrespective of that issue, it is clear that a respondent is just as constrained as an appellant by the parameters of section 69. Any point argued pursuant to a respondent's notice must be one of law. It is no more open to a respondent than an appellant to go behind or beyond the tribunal's findings of fact …”
[54]In Mitsui & Co (USA) Inc v Asia-Potash International Investment (Guangzhou) Co Ltd [2023] EWHC 1119 (Comm); [2024] 1 Lloyd's Rep 639, Mitsui brought a claim for an indemnity against DGO under a contract of sale in respect of Mitsui’s own liability to its seller. The FOSFA Board of Appeal dismissed the claim for an indemnity. Mitsui obtained permission to appeal on the grounds that DGO had a duty to indemnify Mitsui on a correct application of the principles of remoteness, but the Board of Appeal misdirected itself on the law of remoteness. DGO resisted the appeal on the ground that the Board of Appeal did not misdirect itself but, if that was wrong, it applied to amend its Respondent’s Notice to introduce an argument that the Board of Appeal had a discretion as to whether to award Mitsui the indemnity sought and that, the Board of Appeal not having exercised that discretion in Mitsui’s favour, the case should be remitted to the Board of Appeal.[55]Picken J allowed the appeal (and remitted the award to the Board of Appeal to determine the indemnity claim using the correct principles of remoteness) but refused permission to amend the Respondent’s Notice.

The judge referred to CPR PD62, para. 12.6 and then said at para. 82-87:

“82. This, therefore, contemplates a respondent to an arbitration appeal resisting an appellant’s appeal either on the basis of the grounds contained in the award under appeal or on the basis of grounds not set out in the award upon which it invites the court to uphold the award. The provision does not provide a mechanism for the court to vary, remit or set aside the award. If a party wishes to seek any of those remedies, it must itself apply pursuant to sections 67, 68 or 69 of the 1996 Act - in the case of section 69, seeking permission in relation to a point of law that the arbitral tribunal was asked to determine. 83. It follows that, whilst DGO could rely on the provision to raise grounds not expressed in the award in order to invite the court to dismiss Mitsui’s application, it cannot do so in order to invite the court to remit a distinct issue to the Board of Appeal. The latter, however, is what DGO is now seeking to do. For this reason alone, it would be inappropriate to give DGO leave to re-amend. 84. Secondly, as Mr Kenny KC acknowledges, if a respondent wishes to contend that an award should be upheld on different grounds by the court, it must raise it at the permission stage in a respondent’s notice, and late amendments will only rarely be granted. As Hamblen J put it in Cottonex Anstalt v Patriot Spinning Mills Ltd [2014] 1 Lloyd's Rep 615 at paras 41 to 42: “41. If a respondent wishes to contend that the award should be upheld on other grounds, it should do so at the permission to appeal stage, as required by PD 62 para 12.6. It is important that this is done so as to ensure that decisions on permission to appeal are made on an informed basis: Acada Chemicals Ltd v Empresa Nacional Pesquera SA [1994] 1 Lloyd's Rep 428 at page 432. Whilst the court does have jurisdiction to permit grounds to be raised later, ‘appropriate cases are likely to be rare’ (per HHJ Havelock-Allan in P T Putrabali Adyamulia v Société est Epices (The Intan 6) [2003] 2 Lloyd's Rep 700 at page 709 col 1) …” 85. Although in Ramburs Inc v Agrifert SA [2016] Bus LR 135, at para 10, Andrew Smith J pointed out that a respondent did not have to oppose the application for leave to appeal (in which event there would be no opportunity to submit a respondent's notice), in MUR Shipping BV v RTI Ltd [2022] 2 Lloyd's Rep 297, at para 49, Jacobs J agreed with what Hamblen J had to say … There is, in short, no scope in the present case to apply a less stringent test to that identified by Hamblen J in the Cottonex case. 87. Thirdly, whilst the authorities (including the Cottonex case at paras 24 to 35) are clear that a respondent can rely on a point of pure law not argued before the arbitral tribunal in providing grounds for resisting an appellant’s appeal, it cannot be the case that a respondent can raise a point of law which was not determined by the arbitral tribunal in support of its own application for distinct relief over and above the dismissal of the (appellant’s) appeal. CPR PD 62 para 12.6, in short, is concerned with resisting an appeal rather than with the seeking of relief which a respondent itself wishes to obtain - in this case remission in order to address a new case based on clause 29 which DGO has not previously sought to advance.” “41. If a respondent wishes to contend that the award should be upheld on other grounds, it should do so at the permission to appeal stage, as required by PD 62 para 12.6. It is important that this is done so as to ensure that decisions on permission to appeal are made on an informed basis: Acada Chemicals Ltd v Empresa Nacional Pesquera SA [1994] 1 Lloyd's Rep 428 at page 432. Whilst the court does have jurisdiction to permit grounds to be raised later, ‘appropriate cases are likely to be rare’ (per HHJ Havelock-Allan in P T Putrabali Adyamulia v Société est Epices (The Intan 6) [2003] 2 Lloyd's Rep 700 at page 709 col 1) …”
[56]In Trans Trade RK SA v State Food & Grain Corporation of Ukraine [2025] EWHC 1803 (Comm); [2026] 1 WLR 305, the respondent sellers did not oppose the application for permission to appeal and further contended that, if the appeal succeeded (so that their claim for the price of goods failed), the award should be remitted to the GAFTA Board of Appeal so that they could argue before them that they were entitled to damages, a claim that had not been advanced before the Board and was therefore not the subject of any findings of fact and a claim that was entirely independent of the issue raised by the question of law which the court was asked to determine (namely whether the sellers were entitled to payment of the price of the goods). The claimant buyers argued that the sellers could not advance that argument, because the claim had not been advanced before the tribunal and would involve going behind the tribunal’s findings of fact, and because the sellers had not filed a Respondents’ Notice to take these points. The Court refused to remit the award because the damages claim had not been advanced before the tribunal (para. 62-63). At para. 21-30, Andrew Baker J said:
“21. An objection that an argument is not available to a respondent on the final hearing of a section 69 appeal may be an objection that due to the nature of such an appeal, and recognising the primacy of the arbitral process, the argument is one that the court cannot or should not entertain. That is what I mean when referring to the admissibility of an argument on a section 69 appeal. 22. An argument that is inadmissible in that sense cannot affect the outcome of the section 69 appeal for what is, in context, a substantive reason, concerning the proper ambit of intervention by the court under the 1996 Act. Thus for instance, several authorities hold that under section 69 it is no more open to a respondent than it is to an appellant to go behind or beyond the arbitrators’ findings of fact, at all events if, in the case of going beyond those findings, the respondent would be seeking findings it did not seek from the arbitrators: see, for example, CTI Group Inc v Transclear SA (No 2) (The Mary Nour) [2008] 1 All ER (Comm) 203; Cottonex Anstalt v Patriot Spinning Mills Ltd [2014] 1 Lloyd's Rep 615; MUR Shipping BV v RTI Ltd [2022] Bus LR 473 (on appeal, not touching this point, MUR Shipping BV v RTI Ltd [2023] Bus LR 355, MUR Shipping BV v RTI Ltd [2025] AC 675). 23. On the other hand, an objection to a respondent’s argument may be that it should not be allowed to rely on it for the procedural reason that the respondent failed to comply with an obligation relating to it that arose under the CPR or a Practice Direction (or an order giving directions in the particular case). That was the additional point taken against the seller’s second alternative case. 24. The premise for the objection was that notice of an intention to pursue the second alternative case should have been given under CPR PD 62, para 12.6(2) … 25. The seller’s second alternative case, as clarified by Mr Debattista in oral argument, did not contend that the awards should be upheld for reasons other than those given by the Board of Appeal. Rather, it contended that if the appeals were well founded, meaning that the Board was wrong in law to uphold the seller’s claims under section 49(2), the relief granted under section 69(7) should be or should include remission to the Board for it to consider in each case whether to uphold instead a different claim. So, if CPR PD 62, para 12.6 applied here at all, I would say that sub-paragraph (2) did not require that second alternative case to be stated in the respondent’s notice. 26. However, on its terms, CPR PD 62, para 12.6 did not apply anyway. The seller did not oppose the leave to appeal application. On the plain language of the Practice Direction, it therefore came under no obligation to file a respondent’s notice. It might perhaps have been required to do so as a condition of granting it permission to participate, having acknowledged service so far out of time, but in fact unqualified permission was granted. 27. Foxton et al, Mustill & Boyd: Commercial and Investor State Arbitration, 3rd ed (2024), para 14.167, cite MRI Trading AG v Erdenet Mining Corpn LLC [2012] 2 Lloyd's Rep 465 at para 39, for a proposition that, “If a party contends that an award should be upheld for reasons not set out in the award, [it] is required to file a respondent’s notice at the stage of the application for [leave] to appeal”
. Eder J’s decision to allow the appeal in that case, and not remit to the arbitrators, was later upheld without reference to the procedural point: [2013] 1 Lloyd's Rep 638. 28. The procedural objection, taken as it was only against the seller’s second alternative case, was not the subject of fully researched argument. Procedural objections like it have been considered a number of times in the case law, not all of which counsel cited. My dismissal of the procedural objection does not affect the outcome of these appeals because I agree with Mr Nolan’s submission that the seller’s second alternative case was inadmissible anyway (see paras 62-63 below). I therefore did not delay matters by inviting further submissions on the case law, but Appendix A to this judgment sets out a fuller explanation of my conclusion that there was no good procedural objection, lest a different view be taken as to its decisiveness if the matter goes further. 29. The upshot is that, in my judgment: MRI Trading is not authority for the seemingly absolute proposition stated by Eder J; CPR PD 62, para 12.6 should be applied in accordance with its terms; and there was no procedural breach by the seller beyond its failure to acknowledge service within time. After the order granting the seller permission to participate at the hearing, which contained no restriction on the arguments available to it in resisting the appeal, the seller was in the same position as if it had acknowledged service within time but had then chosen not to oppose the application for leave to appeal. The procedural rules do not require such a respondent to do anything more at the leave to appeal stage. If the court grants leave on the papers, then apart from complying with any directions given in the particular case, the respondent’s subsequent procedural obligations are only the usual ones applicable to preparation for and appearance at a hearing in this court, essentially co-operation as to hearing bundles and any other practicalities, and the timely filing and service of a skeleton argument. 30. If CPR PD 62, para 12.6 had required the seller’s second alternative case to have been raised by a respondent’s notice filed and served at the leave to appeal stage, so that permission was required to rely on it at the appeal hearing, I would not have granted permission. No respondent’s notice was in fact filed or served. If Mr Debattista’s skeleton arguments were treated as a potential substitute, they came over eight months out of time with no adequate explanation for the delay. The only explanation for the late emergence of the desire to argue the points taken by the seller was Mr Debattista’s assertion without evidence, referred to further below, that the seller had been hampered in some way by financial constraints. He did not even assert that the seller had been unable to participate at the leave to appeal stage.”[57]In Appendix A to his judgment, Andrew Baker J developed his discussion of the procedural issue of whether a Respondent’s Notice was required to be served at the stage of an application for permission to appeal, in support of other grounds for upholding the award, which are intended to be raised at the hearing of the appeal itself, if permission is granted. The learned judge’s primary focus was a case where the respondent had not in fact opposed the application for permission to appeal by the applicant. At para. A8-A13, Andrew Baker J said:
“A8. … Where the respondent opposes the leave to appeal application, so that paragraph 12.6 then applies and requires (as I read it) disclosure of any desire to contend on the appeal, if leave be granted, that the award should be upheld for reasons not given by the arbitrators, then the appellant will naturally assume, and the respondent should reasonably expect, that no contention of that kind not disclosed by the respondent’s notice will be advanced, absent agreement or permission. Here, though, CPR PD 62, para 12.6, on its own terms, did not apply, with the result that no respondent's notice was required. A9. In MRI Trading, Eder J indeed stated in unqualified terms, at para 39, that “a party who wishes to contend that an award should be upheld for reasons not expressed (or not fully expressed) in such award is required to file a respondent’s notice at the stage of the application for permission to appeal in accordance with CPR PD 62, para 12.6”
. That was not essential to Eder J’s relevant decision, which was to refuse to remit the matter to the arbitrators upon the success of the appeal, because he judged the claim that a remission, if ordered, might be capable of affecting the ultimate outcome to be entirely speculative. A10. … I consider it reasonable to infer, absent any indication to the contrary, that the respondent in MRI Trading will have opposed the application for leave to appeal and that Eder J will not have had in mind the atypical case of non-opposition. Likewise Hamblen J (as he was then) in Cottonex Anstalt [2014] 1 Lloyd's Rep 615 (para 22 above again), who also expressed himself, obiter, in unqualified terms, saying at para 41 that “If a respondent wishes to contend that the award should be upheld on other grounds, it should do so at the permission to appeal stage, as required by PD 62, para 12.6” (emphasis added). That was obiter because Hamblen J dismissed the relevant contentions as inadmissible since they either sought to go behind a finding of fact in the award or required findings of fact not sought from the arbitrators (see paras 34-40). Again there is no reason to suppose that Hamblen J had in mind the unusual case of a respondent not opposing the leave to appeal application but participating in the appeal after leave had been granted. A11. I therefore do not consider that either MRI Trading or Cottonex Anstalt is authority for the proposition that CPR PD 62, para 12.6 requires a respondent who does not oppose the leave to appeal application to file or serve a respondent’s notice; and as I have already indicated, I consider that is not what paragraph 12.6 says, but rather on its own terms it plainly does not apply at all to such a respondent. In MUR Shipping at paras 46-49, Jacobs J, obiter, favoured the view that where a respondent has in fact opposed the leave to appeal application, then indeed permission (or consent) is required to pursue at the hearing of the appeal, if leave is granted, a contention that the award should be upheld for reasons not given by the arbitrators that was not identified in a respondent’s notice served in accordance with paragraph 12.6. That was obiter because Jacobs J in fact dealt with all of the respondent’s arguments on their merits. A12. Jacobs J’s view, for the case where a respondent does oppose the leave to appeal application, is in my view consistent with what I have said in para A8 above. The careful way in which Jacobs J expressed himself, and what he said about Ramburs Inc at para 48, in my view recognised that the position at all events might be different, and on the plain language of paragraph 12.6 appears to be so, for the atypical case of non-opposition at the leave to appeal stage. Most recently, in Mitsui & Co (USA) Inc v Asia-Potash International Investment (Guangzhou) Co Ltd [2024] 1 Lloyd's Rep 639, paras 84-85, Picken J adopted the same approach, following what Jacobs J had said in MUR Shipping, yet again obiter (since in the Mitsui case counsel for the respondent conceded that he required permission to amend the respondent’s notice to pursue the intended new point). A13. Stepping back, there might perhaps be room to consider that it would be better to require a respondent that opposes the leave to appeal application to file and serve a document setting out the grounds on which it does so (but not the argument, which would come in a skeleton argument) in good time before the court will determine the application (nowadays normally on the papers), and separately to require a respondent to an appeal for which leave has been granted to file and serve a respondent’s notice in good time before the hearing of the appeal. That is not, however, the regime now provided for by CPR PD 62, para 12.6. I wonder if there might also be room to consider whether, in the context of section 69 appeals, the language of CPR PD 62, para 12.6(2) covers all matters on which it would be valuable to require a respondent to set out its stall substantially in advance of its skeleton argument for the appeal hearing (cf para 25 above).[58]In these circumstances, the principles I draw from these decisions are as follows:(1) If an award is sought to be upheld by a respondent to an application for permission to appeal under section 69 on grounds not set out in the award (either because the respondent’s arguments have not been dealt with by the tribunal or because they have not been accepted by the tribunal), then the respondent must file a Respondent’s Notice (Mitsui & Co (USA) Inc v Asia-Potash International Investment (Guangzhou) Co Ltd [2023] EWHC 1119 (Comm); [2024] 1 Lloyd's Rep 639, para. 82, 87).(2) That Respondent’s Notice must be served in accordance with the deadline set out in CPR PD 62, para. 12.7. That means the Respondent’s Notice must be filed before the application for permission to appeal is to be determined by the Court. This makes sense because the Court should be in a position to know, before determining the application, what the full breadth of the arguments to be advanced by the parties are to be.(3) If no Respondent’s Notice is filed in accordance with CPR PD 62, para. 12.7 (i.e. prior to the determination of the application for permission to appeal), it is not open to the respondent to rely at the appeal hearing on any other grounds for upholding the award, not dealt with in the award (Cottonex Anstalt v Patriot Spinning Mills Ltd [2014] EWHC 236 (Comm) [2014] 1 Lloyd's Rep 615, para. 41-42; MUR Shipping BV v RTI Ltd [2022] EWHC 467 (Comm); [2022] 2 Lloyd's Rep 297, para. 48-50; Mitsui & Co (USA) Inc v Asia-Potash International Investment (Guangzhou) Co Ltd [2023] EWHC 1119 (Comm); [2024] 1 Lloyd's Rep 639, para. 84-85). I understand that the decision of Andrew Smith J in Ramburs Inc v Agrifert SA [2015] EWHC 3548 (Comm); [2016] Bus LR 135, para. 10, appears to run counter to this approach, but given the limited analysis referred to in the learned judge’s decision, and the contrary decisions in Cottonex and MUR v RTI, I have little difficulty in following the latter decisions. As far as the decision of Andrew Baker J in Trans Trade RK SA v State Food & Grain Corporation of Ukraine [2025] EWHC 1803 (Comm); [2026] 1 WLR 305 is concerned, I read the judge’s analysis as being primarily concerned with the position of a respondent who does not oppose the application for permission to appeal. In any case, I consider that the careful analysis undertaken by the judge in Appendix A, especially para. A8 and A12, supports this interpretation of the Practice Direction.(4) It would not be appropriate to allow remission to the tribunal of a further ground for upholding the tribunal’s decision, even though the grounds relied on by the tribunal were the subject of challenge by the claimant, if that ground were not heralded by a Respondent’s Notice. In those circumstances, it would be “inappropriate” to remit the Award within the meaning of section 69(7) of the Arbitration Act 1996 (MRI Trading AG v Erdenet Mining Corporation LLC [2012] EWHC 1988 (Comm); [2012] 2 Lloyd's Rep 465, para. 39). This is so, even if the respondent were to notify the claimant in other ways of such an intention (such as in correspondence), although in that event if the claimant had sufficiently early notification of such grounds, that might well be a ground for allowing a late Respondent’s Notice.(5) The requirement of such arguments and issues to be included in a Respondent’s Notice is consistent with the overriding objective so that the claimant is in a position to know in advance what arguments are to be advanced by the respondent, and therefore what issues and claims/counterclaims are still potentially alive, in the same way that the claimant is constrained by what grounds can be advanced by it by the terms of the application under section 69 (MUR Shipping BV v RTI Ltd [2022] EWHC 467 (Comm); [2022] 2 Lloyd's Rep 297, para. 49; Trans Trade RK SA v State Food & Grain Corporation of Ukraine [2025] EWHC 1803 (Comm); [2026] 1 WLR 305, Appendix A, para. A8 and A12). Indeed, as Mr Nolan KC pointed out, the respondent has an advantage in any case given that the additional grounds relied on by it do not require the Court’s permission, unlike the grounds relied on by the claimant.[59]When considering these principles, it is important, I think, to keep an eye on the distinction between what is required in a Respondent’s Notice and when remission might be ordered. The Respondent’s Notice essentially sets out the grounds on which the respondent seeks to uphold the award. Remission, as well as the variation or setting aside of an award, are remedies which are available to the Court in disposing of an appeal under section 69 of the Arbitration Act 1996. CPR rule 62.4 requires the claimant to identify the remedy it seeks. There is, as far as I am aware, no equivalent provision requiring the respondent to identify the remedy which it seeks or might seek upon the disposal of the claimant’s appeal. In Mitsui & Co (USA) Inc v Asia-Potash International Investment (Guangzhou) Co Ltd [2023] EWHC 1119 (Comm); [2024] 1 Lloyd's Rep 639, Picken J said that a respondent to a section 69 appeal who sought a remedy beyond seeking an order for the dismissal of the appeal, should apply for relief under sections 67, 68 or 69 of the Arbitration Act 1996. In many cases, that is likely to be so, but there may be occasions where a respondent includes in a Respondent’s Notice an admissible ground which had been argued before the tribunal but had not been determined, and its determination might require additional findings of fact. In that scenario, I can see that the Court should be able to order a remission. That is not a matter which requires further consideration in this judgment.[60]Applying these principles to the present case, in my judgment, a Respondent’s Notice was required in respect of the Owners’ Clause 11 claim for the following reasons:(1) The Owners’ claim for demurrage was based on the laytime/demurrage provisions of the Charterparty (ordinary demurrage) and/or Clause 11. Indeed, by its terms, Clause 11 is expressly concerned with demurrage. As the Owners are not pursuing their claim for loss of earnings and expenses under Clause 11, as advanced before the Tribunal, they are left with their claim for demurrage under Clause 11.(2) Assuming that demurrage might be recoverable under Clause 11, even if it is not recoverable under the laytime/demurrage provisions of the Charterparty, there is a separate question as to how much of the detention of the Vessel was caused by “fumigation” within the meaning of Clause 11. That is not a matter which the Tribunal addressed or determined expressly.(3) Assuming that the same sum in respect of the demurrage claim as allowed by the Tribunal, and dismissed by the Court, was separately recoverable under Clause 11, then I would consider the Owners’ reliance on Clause 11 to be a reason for upholding the demurrage claim allowed by the Tribunal within the meaning of Clause 11.(4) I also consider that if demurrage was recoverable under Clause 11, that would be a reason for upholding the Award which is not expressed or not fully expressed in the Award within the meaning of CPR PD 62, para. 12.6, because the Tribunal did not rely on Clause 11 as a reason to uphold its award of demurrage; it dismissed the claim.(5) If, however, as a matter of fact (which has not been determined by the Tribunal) the demurrage recoverable under Clause 11 is less than the demurrage awarded by the Tribunal, Clause 11 would or could still be relied on by the Owners as a reason for upholding the Award, and requiring a Respondent’s Notice, even though it does not support the entirety of the sum awarded. It would be an odd state of affairs if the question whether the claim under Clause 11 should be included in a Respondent’s Notice should depend on whether Clause 11 could be relied on to support the entirety or only a part of the sum awarded by way of demurrage, depending on how a question of fact - i.e. to what extent the detention was caused by fumigation - is ultimately determined by the Tribunal on remission of the issue to it. To avoid such an unfortunate state of affairs, the Court should grapple with the question of what is and should be included in a Respondent’s Notice at the stage of the application for permission to appeal and the appeal itself, and not afterwards.[61]Therefore, as a Respondent’s Notice was required in respect of the Clause 11 claim, but no Respondent’s Notice was served, it follows that the Owners’ pursuit of the Clause 11 claim should not be permitted and that the Clause 11 claim should not be remitted to the Tribunal. If that is wrong, and the claim under Clause 11 goes beyond a claim for demurrage, then the recourse open to the Owners was to seek to appeal from the Award pursuant to section 69, but there was no such application.

Conclusion

[62]For the reasons explained above, I have determined that the Owners’ claim in respect of Clause 11 of the Charterparty should not be remitted to the Tribunal.[63]I remain grateful to both counsel for their further knowledgeable and insightful submissions.