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The English Commercial Court has recognised the right to invoke section 72 without a time-limit after an arbitral award is rendered, acting as a "safety-valve" for non-participants
In African Distribution Company S.a.r.L v Aastar Trading Pte Ltd [2025] EWHC 2428 (Comm), the English Commercial Court (the Court) dismissed an application to extend time for bringing a challenge to an arbitral award under ss.67 and 68 of the Arbitration Act 1996 (the Act). However, the Court left open the possibility that the claimant could, given it did not participate in the arbitral proceedings, bring a claim under s.72(1) without any time limits. This decision underscores that while the 28-day limit is stringent for challenges to arbitration awards, s.72(1) offers another potential avenue for relief for non-participants.
Background
The claim was brought by African Distribution Company S.a.R.L. (ADC or the Claimant), a Côte d'Ivoire-based importer and distributor of natural food products, seeking to set aside an arbitration award issued by an English arbitrator appointed under the rules of the Grain and Feed Trade Association (GAFTA). The award was in favour of AASTAR Trading (AASTAR or the Respondent), a Singaporean trading company supplying a range of goods including food products. Between May 2021 and March 2022, the parties entered a series of contracts for the supply of rice by AASTAR to ADC, each containing a GAFTA arbitration clause. By the end of 2022, disputes had arisen between the parties over payment for shipments, with AASTAR demanding full payment and ADC insisting on discounts for alleged defects and delays.
On 20 July 2023, AASTAR initiated arbitration under the GAFTA Rules by emailing the Notice of Arbitration to GAFTA and copied it to ADC's generic email addresses. ADC did not respond to the Notice or to GAFTA's subsequent communications. ADC maintained that it never saw these emails, suggesting they may have been automatically filtered as spam, and did not participate in the arbitration. On 21 February 2024, the arbitrator issued an award in favour of AASTAR. ADC claimed it first became aware of the award on 8 July 2024, when AASTAR initiated enforcement proceedings. ADC was formally served in those proceedings with the award on 30 July 2024.
On 27 August 2024, ADC applied to the English court to set aside the award. It challenged the award under s.67 of the Act for lack of jurisdiction and under s.68 for serious procedural irregularity, alleging that the arbitration was conducted without proper service and that it was denied a reasonable opportunity to participate. Since the statutory 28-day limit under s.70(3) had elapsed, ADC also sought an extension of time under s.80(5) of the Act and CPR 62.9. In the alternative, it invoked s.72(1) of the Act on the basis that, as a non-participant in the arbitration, it was entitled to challenge the award at any time.
Decision
The Court (HHJ Tindal) declined ADC's application for an extension of time to bring challenges under ss.67 and 68 of the Act, on the basis that the application was made well outside the 28-day time limit prescribed by s.70(3). In reaching this decision, the Court considered s.80(5) of the Act and applied the factors set out in Kalmneft v Glencore [2001] EWHC QB 461. In brief, these factors are (i) the length of the delay, (ii) whether the delaying party was acting reasonably, (iii) who caused or contributed to the delay, (iv) whether irremediable prejudice would be suffered if the application were permitted to proceed, (v) the impact on any ongoing arbitration, (vi) the strength of the application and (vii) whether in the broadest sense it would be unfair to deny the applicant the opportunity to have their application determined. Weighing these factors, the Court found that ADC had not acted promptly and failed to demonstrate any real risk of unfairness. The Court saw no compelling injustice to justify overriding the statutory time limit, noting that even after nearly a year of litigation, ADC's case was only "arguable".
Furthermore, a key issue considered by the Court was whether s.72(1) – which allows a person who "takes no part in the arbitration" to "question" the tribunal's jurisdiction in court – is confined to pre-award challenges or can also be invoked after an award has been issued. The Claimant argued (albeit cautiously) that, as a non-participant, it could rely on s.72(1) to challenge the award retrospectively, whilst the Respondent maintained that s.72(1) cannot be used post-award and that the Claimant's challenge was therefore impermissible.
Although the Court emphasised that it was not deciding the full scope or availability of relief under s.72(1) and that its observations were obiter, this discussion was nonetheless relevant to the extension application because whether an application under s.72(1) was available impacted the Court's assessment of factors (vii) and (iv) in Kalmneft v Glencore (as above). In particular, if the Claimant could proceed under s.72(1), then refusing an extension for its ss.67 and 68 challenges would cause less prejudice.
The Court ultimately expressed the view that a s.72(1) claim is not limited to the pre-award or interlocutory stage. It may, in principle, be used post-award to obtain declaratory or even injunctive relief – and in very rare cases, to set aside an award – but "only with caution". The Court described s.72(1) as a "free-standing, flexible remedy" and a "safety-valve" for a party who has not participated in the arbitral process.
Comment
Although the Court's remarks on s.72(1) were obiter, they provide helpful clarity regarding the scope of s.72(1) and underscore the protective function of s.72(1) as a jurisdictional "safety-valve" for parties who have not participated in arbitral proceedings. By recognising that s.72(1) can, in principle, be invoked even after an award, the Court reaffirmed that access to justice should not be prevented by non-participation in arbitral proceedings. That said, the Court was nonetheless clear that this is a power that must be exercised with caution, in order to prevent the risk of tactical challenges.
The authors would like to thank Anannya Meghani for her contribution to this post.
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