February 28, 2018 Practice Points

Email to Employee Not Sufficient Notice of Arbitration

By S.I. Strong

A recent case from the English Commercial Court considers issues relating to service of notice of arbitration by email. In Glencore Agriculture BV v Conqueror Holdings Ltd [2017] EWHC 2893 (Comm) (Nov. 16, 2017), Glencore Grain sought to set aside a final arbitration award of a sole arbitrator in favor of Conqueror. Glencore Grain had taken no part in the arbitration and was unaware of the proceedings until it received the award by standard mail on October 28, 2016. The notice of arbitration and other documents were sent to the email address of an employee of Glencore Grain who left Glencore Grain's employment in September 2016, although the employee was still on staff during the pendency of the arbitration. The issue is whether the notice of arbitration and notice under section 17 of the English Arbitration Act 1996 were validly served by being sent to the employee's email address.

The case was decided on agency principles, namely whether the former employee could be considered an agent of Glencore Grain who had actual or ostensible authority to receive service to Glencore Grain under section 76 of the Arbitration Act 1996. According to the court,

[Nothing in] the facts of the present case . . . support a finding of implied authority. The most that can be said is that Mr Oosterman was a representative of the operational department who had sent operational communications in relation to the performance of the charter party and the events giving rise to the dispute. That is not sufficient to give rise to the inference that he was cloaked with authority to assume the serious and distinct responsibility for accepting service of legal process. It cannot be said that he thereby impliedly had authority to handle any legal dispute arising out of the voyage, still less to accept service of legal or arbitral process and deal with it.

Furthermore, the facts

are insufficient to establish implied authority (even when taken with other evidence, such as the LinkedIn material which was not promulgated by Glencore Grain to Conqueror); on their own they do not hold Mr Oosterman out as having anything more than a limited operational role in relation to the voyage. They do not hold him out as having authority to handle any legal dispute arising out of the voyage, still less to accept service of legal or arbitral process and deal with it.

As a result, the court held there was insufficient notice of the commencement of the arbitration and ordered the award to be set aside.

S.I. Strong is the Manley O. Hudson Professor at the University of Missouri, School of Law in Columbia, Missouri.

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