In the recent High Court of England and Wales decision, Glencore Agriculture B.V. and Conqueror Holdings Limited, the Commercial Court was asked to consider whether the notice of Arbitration and notice under section 17 of the Arbitration Act (the “Act”) sent via email was considered valid service. Justice Popplewell found that serving to the Claimant’s employee’s email address did not constitute valid service and set aside the final arbitration award.
The Arbitration Award
The dispute arose under a voyage charterparty which was subject to arbitration. The Defendant, Conqueror Holdings Limited (“Conqueror”) appointed a claims adjuster to pursue a claim against the Claimant, Glencore Agriculture B.V. (“Glencore”).
The claims adjuster sent a series of emails to an employee of Glencore, Mr. Oosterman. The employee had previously been in correspondence with the Defendant during the initial dispute using the email address “email@example.com”. The emails provided to Mr. Oosterman included: a letter before action, a letter attaching a freight statement, and eventually a notice of appointment of an arbitrator. Glencore did not provide a response to any of the emails. Finally, pursuant to section 17 of the Act, Conqueror appointed Mr. Marshall to act as the sole arbitrator. Despite further emails outlining Conqueror’s claims submissions and further attempts requesting Glencore’s defence submissions, the arbitration proceeded without Glencore, and ultimately an award of US$43,176.27 plus costs was issued by the tribunal in favour of Conqueror.
High Court of England and Wales sets aside arbitration award
Glencore made an application to the Court pursuant to section 72 of the Act to have the award set aside on the grounds that Glencore was never aware of the proceedings. Glencore argued Mr. Oosterman was a junior back office employee, and had no actual or ostensible authority from Glencore to accept service of the notices and documents.
In a previous decision, Bernuth Lines ltd. V High Seas Shipping Ltd.  1 Lloyd’s Reports 537, it was found that sending documents to a generic company email address, such as “firstname.lastname@example.org”, was sufficient to amount to effective service. Justice Popplewell held that there was a distinction between service to a generic company email address and an individual employee email address. A generic email address promulgated by the company gives rise to the legitimate expectation that communications sent to that address will come to the attention of a person internally authorized to deal with them. However, an individual employee’s email address does not provide the same expectation. Service is not effective by simply sending an email to any email address at Glencore. The employee must have the authority to accept service.
Glencore’s website contains an email address: “email@example.com”. The Court notes Conqueror could have inquired through this email address to whom the notice should be addressed. Alternatively, pursuant to section 76(4), Conqueror could have served notice by post to a registered or principal address.
While Mr. Oosterman was involved in the initial dispute, his role at Glencore was not more than a limited operational role in relation to the voyage. The Court found that Mr. Oosterman had no express or implied authority to accept service of the proceedings. As such, the Court found that Glencore was not effectively served with notice of commencement of arbitration or the section 17 notice.
- Care should be taken when serving arbitration notices by email. It is insufficient to serve documents via email to an individual solely on the basis they had taken part in the underlying dispute.
- There is a difference between serving documents to a generic company email address and an employee’s individual email address. Service to an employee’s individual email address will not be effective unless the employee has the authority to accept service.
- When serving documents, take the necessary steps to identify the correct defendant, and the appropriate person or persons to whom notice should be given to.
 Glencore Agriculture B.V. and Conqueror Holdings Limited  EWHC 2893 (Comm) at para 24 (“Glencore”)
 Glencore, at para 25