Public Company Rise v Nibulon SA

Public Company Rise v Nibulon SA

Clause 17 of GAFTA78 operates as a qualification to clause 11.3 and is not overridden by it. It applies to both total and partial restrictions on export, provided the qualifying event caused the inability to perform. The Appeal Board did not properly address causation, and the matter must be remitted for further consideration.

Parties
Claimant: Public Company Rise; Defendant: Nibulon S.A
Jurisdiction
England and Wales
Judgment Date
24 March 2015
Procedural Posture
Commercial Arbitration Appeal / Judgment on Appeal Under Section 69 of the Arbitration Act 1996
Outcome
Award remitted to the Appeal Board for further consideration on causation.
Legal Topics
Contract Construction, Force Majeure Clauses, Export Restrictions, Arbitration Appeals
Commercial Law Arbitration Contract Construction Force Majeure Clauses Export Restrictions Arbitration Appeals

Case Brief

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Parties

Public Company Rise

Claimant

Nibulon S.A

Defendant

Procedural Posture

Commercial Arbitration Appeal / Judgment on Appeal Under Section 69 of the Arbitration Act 1996

Legal Issues

  1. 1 Does clause 11.3 of the Three Contracts override clause 17 of GAFTA78 or does clause 17 operate as a qualification to clause 11.3?
  2. 2 Does clause 17 of GAFTA78 only relieve sellers of an obligation to obtain an export licence in circumstances where there is a prohibition amounting to a 'total ban'?
  3. 3 Are sellers not able to rely upon clause 17 of GAFTA78 when they are not 'prevented' but merely 'restricted' from making shipments?

Ratio Decidendi

Clause 17 of GAFTA78 operates as a qualification to clause 11.3 and is not overridden by it. It applies to both total and partial restrictions on export, provided the qualifying event caused the inability to perform. The Appeal Board did not properly address causation, and the matter must be remitted for further consideration.

Court Disposition

Award remitted to the Appeal Board for further consideration on causation.

Orders

  • The Award is remitted to the Board of Appeal to determine whether the Sellers were unable to obtain the necessary export licences for shipment because of the quota restrictions.