15/10/2013

Al Nasr Co for Coke and Chemicals v Fairdeal Supplies Ltd [2013] EWHC 3131 (Comm)

This was a s 69 appeal from an arbitration award in which the defendant (Fairdeal) had been awarded damages in respect of the claimant’s (Al Nasr’s) refusal to deliver a cargo of low ash metallurgical coke.

The claimant appealed on the basis that the arbitral tribunal had failed to give effect to a “null and void” provision in an agreement amending the original sale contract. It contended that the effect of this clause was that any conduct which might have constituted a waiver in relation to time for performance under the original sale contract should be ignored, and that the parties should go back to the unamended terms of that contract which, it was said, had expired unperformed.

Males J rejected this construction of the “null and void” provision. It did reinstate the original sale contract, but it did not allow the claimant to ignore all events which had occurred after that contract had been concluded. The tribunal had been entitled to conclude that the parties’ conduct following the conclusion of the sale contract had been effective to waive the time for performance, and that the contract remained alive and capable of performance at the time when the claimant repudiated it.

The appeal was therefore dismissed.

Member of Chambers: Rupert Hamilton appeared for the defendant (instructed by Reed Smith LLP)