Monday 26 – Tuesday 27 September 2022
By Appellant’s Notice filed on 1st April 2022, the Defendant RIT appeals, with permission, the Order of Mr Justice Jacobs dated 3rd March 2022 in which he allowed the Claimant’s appeal under s69 of the Arbitration Act 1996; set aside the Award insofar as it held the Claimant liable for damages in respect of the seven vessels chartered in the period during which it suspended its performance of the Contract of Affreightment on grounds of force majeure; remitted the matter to the Tribunal to determine how the Award should be amended in light of that and made an order as to costs.
The Tribunal Award upheld RTI’s claim for breach of a contract of affreightment made between the parties dated 9 June 2016 (“the COA”), which provided for RTI to ship, and MUR to carry, bauxite in bulk from Conakry, Guinea, to Dneprobugsky, Ukraine, between 1 July 2016 and 30 June 2018. RTI claimed the cost of obtaining substitute performance of MUR’s obligations under the COA during periods in which MUR failed to perform. In relation to one of the periods in respect of which RTI claimed, MUR pleaded a force majeure defence, saying that performance had been lawfully suspended pursuant to clause 36 of the COA due (among other things) to difficulties with RTI making freight payments in US dollars following the sanctioning of their parent company, UC Rusal. The Tribunal accepted that the FM Clause was engaged subject to the “reasonable endeavours” point, but concluded that payment in Euros was “a completely realistic alternative” to payment in US dollars and that as a result MUR’s force majeure case failed. Jacobs J disagreed and allowed MUR’s appeal on the basis that “reasonable endeavours” could not entail the acceptance of non-contractual performance. However, he granted RTI permission to appeal on the basis that the appeal had a real prospect of success and raised a question of general importance.