Hot on the heels of the Sino v Dana decision (reported in our blog on 16 November), the Commercial Court considered the question of notice of appointment of an arbitrator once again in Glencore Agriculture BV (formerly Glencore Grain BV) v Conqueror Holdings Limited [2017] EWHC 2893. 

This is another case where the Respondent (Glencore as Charterer) took no part in the arbitration and was unaware of the proceedings until it received the Award.

It is different, however, to the Sino v Dana case in that the Notice of Arbitration was sent to the email address of an employee of the Respondent and the issue was whether the Notice of Arbitration and Notice under Section 17 Arbitration Act 1996 (appointing the Claimant’s arbitrator as sole arbitrator) were validly served on the Respondent by being sent to that individual’s email address.  He was characterised as a relatively junior employee, and the Court distinguished the position where a Notice is sent to an individual employee’s email account to that in the Eastern Navigator [2006] 1 Lloyd’s Rep 537 where the relevant email address was a generic email address, given as the company’s email address in Lloyd’s Maritime directory and on the company website, and determined to be held out to the world as the only email address of the company. 

It was held that whether an email addressed to an individual’s email address is good service on the company for which he works, must depend upon the particular role which the named individual plays or is held out as playing within the organisation. The agency principles are to be applied, being “the principles which govern whether the acts of an employee bind the company”.  Whether a company is bound by notification to an employee depends upon the authority which the company has granted to that employee to receive the notification.  As in Sino v Dana, the point was made that even where a party has authority to act on another’s behalf that does not (without more) generally extend to authority to accept service of proceedings.

On the facts, and given the role that the individual employee had in this particular case, being a purely operational role, with no senior managerial position and no dispute handling function, there was (i) no basis for finding that he was expressly authorised to accept service of arbitral proceedings (ii) no implied actual authority: he had no implied authority to handle any legal dispute arising out of the voyage or to accept service of legal or arbitral process; and (iii) no ostensible authority: there was nothing other than the individual’s involvement in the contemporaneous exchanges to give rise to any possible ostensible authority, and that was insufficient to establish implied authority –  he was not held out as having anything more than a limited operational role in relation to the voyage. 

This meant that the Respondent had not been effectively served.