Olam Global Agri Pte Ltd v Holbud Ltd

Mr Justice Trower: Introduction

1. This arbitration claim is an appeal under s.69 of the Arbitration Act 1996 (“ s.69 ” and the “Act”) against a GAFTA Board of Appeal (“BOA”) Award No. 4702, dated 2 September 2024 (“the Award”).

2. The subject of the Award was an FOB sale contract incorporating the general terms of GAFTA Contract No 49 dated 19 November 2021 (“the Contract”). Under the Contract, Olam International Ltd, of which the current claimant Olam Global Agri Pte Ltd is the assignee (together “Olam”) agreed to supply a cargo of yellow corn to Holbud Ltd (“Holbud”) for delivery between 1-15 March 2022 (the “Delivery Period”). The origin of the corn was to be Ukraine or Romania at Olam’s option.

3. The Contract provided Olam with a list of four Black Sea load ports from which to nominate for delivery: Pivdennyi, Odessa or Chornomorsk (in Ukraine), or Constanta (in Romania). Holbud’s pre-advice nominating the vessel and its estimated time of arrival (“ETA”) was to be served on Olam not less than eight days before arrival at the load port. The load port was to be declared by Olam to Holbud in writing upon nomination of the vessel by Holbud.

4. The agreed chronology relating to the events which gave rise to the dispute was recorded in the Award as follows. At 6.30 am on 24 February 2022, the Ukrainian foreign minister announced that Russia had commenced a full-scale invasion of Ukraine. At 11.55 pm on the same day, Ukraine announced the closure of all Black Sea and Azov Sea ports. Between the announcement of the invasion and the closure of the Black Sea ports, Olam declared Ukrainian origin. Holbud promptly rejected the declaration saying that it would not accept any declaration of force majeure if made and saying that the cargo should be loaded from Romania. Just over two hours later Holbud nominated “ MV The Finder ”, with an ETA of 6/7 March 2022, as the vessel to perform its obligations under the Contract.

5. The Finder was then at the Bosphorus and its ETA was unspecific as to which load port the estimate referred to. On the morning of 26 February 2022, Olam nominated Pivdennyi (Ukraine) as the load port, at which stage all Ukrainian Black Sea ports had been closed for two days. Olam requested Holbud to confirm that it would perform its obligations under the Contract.

6. On 28 February 2022, there was correspondence between the parties on the issue of whether the circumstances which had occurred amounted to an event of force majeure which would have had the consequence that performance under the Contract was suspended under clause 13 of GAFTA 49 (“clause 13”). This clause is entitled ‘Prevention of Delivery’, and the material parts read as follows: “Should performance of this contract be prevented, whether partially or otherwise, by an Event of Force Majeure, the performance of this contract shall be suspended for the duration of the Event of Force Majeure, provided that Buyers/Sellers (the affected party) shall have served a notice on the other party within 7 consecutive days of the occurrence or not later than 21 consecutive days before commencement of the period of delivery, whichever is later, with the reasons therefor. … If the Event of Force Majeure ceases before the contract or any unfulfilled part thereof can be cancelled, Buyers/Sellers shall notify Sellers/Buyers without delay that the Event of Force Majeure has ceased. The period of delivery shall be extended, from the cessation, to as much time as was left for delivery under the contract prior to the occurrence of the Event of Force Majeure. If the time that was left for delivery under the contract is 14 days or less, a period of 14 consecutive days shall be allowed.”

7. Olam contended that events of force majeure had prevented delivery. Holbud did not accept that it was open to Olam to rely on force majeure arising out of Olam’s nomination of Pivdennyi as the load port because at the time of nomination all Ukrainian Black Sea ports had already been closed. Holbud contended that there was no event of force majeure preventing Olam from complying with its obligations to perform by shipping with Romanian origin from Constanta.

8. On 2 March 2022, Olam sent a formal force majeure notice to Holbud under clause 13, which identified the events of force majeure on which it relied by reference to clause 13. It said that the declaration of Ukrainian origin was made before the closure of all Black Sea ports and could not be changed. It then continued: “Buyers’ latest message purports to reject our force majeure declaration but does not say that Buyers remain able to perform. Indeed, it is our understanding that Buyers cannot currently have a vessel arrive at the load port for receiving the contractual cargo. At the same time, Sellers are currently unable to accumulate and load the contractual cargo. By this email, Sellers declare force majeure under clause 13 of GAFTA 49 (as incorporated into the contract) for reasons that include but may not be limited to (b) blockade; (c) acts of terrorism; (d) hostilities; unforeseeable and unavoidable impediments to transportation or navigation and/or (k) any other event comprehended in the term “Force Majeure”. Accordingly, performance of the contract is suspended in accordance with the terms of clause 13. For the avoidance of doubt, Sellers remain committed to complying with their contractual obligations.”

9. On the same day, Holbud rejected that notice and again requested that Olam nominate a Romanian port to perform its contractual obligations. Olam maintained its force majeure notice, which Holbud again rejected on 8 March 2022. Holbud’s position was then reflected in an email sent on 9 March 2022, in which it alleged that Olam's refusal to withdraw its declaration of force majeure constituted an unequivocal repudiation of the Contract. However, rather than accepting the repudiation, Holbud stated that it would "refrain from holding Sellers in repudiatory breach until 21 days after the end of the delivery period, and potentially 14 days thereafter, being the suspension period(s) provided for in GAFTA 49 Clause 13". Holbud stated that it was adopting this course "to keep open the possibility that Sellers might yet be able to deliver Ukrainian origin corn from a Ukrainian port".

10. It was found by the BOA and not challenged by Holbud that, from 16 March 2022, which was the day after the final day of the Delivery Period, Holbud had employed The Finder on other work. However, it was only on 26 April 2022, some 41 days after the end of the Delivery Period, that Holbud held Olam in repudiatory breach and terminated the Contract.

11. On 12 July 2022, Holbud referred the dispute to arbitration. On 14 November 2023, GAFTA’s First Tier Tribunal (“FTT”) issued an Award of Arbitration No. 18-721, finding Olam to have been in repudiatory breach of the Contract and liable to Holbud for damages in the sum of €5,793,460 plus interest and costs. Olam appealed to the BOA against Award No. 18-721 on 4 December 2023.

12. Olam advanced two arguments in its appeal to the BOA. The first argument was that its obligations under the Contract were limited to delivering Ukrainian- origin corn at the port of Pivdennyi and that performance of that obligation was excused by the occurrence of the events of force majeure following on from the Russian invasion and the closure of Ukraine’s Black Sea ports. Most of the reasoning in the parts of the Award which recorded the BOA’s findings were concerned with this first issue. Olam failed in its arguments on this point but they do not form the subject of the present appeal. Olam accepted that the BOA’s conclusions on this issue turned on factual findings and cannot be challenged under s.69 .

13. However, some of the specific findings made by the BOA have relevance both to that first argument and to the questions relating to damages which do arise on this appeal. They include the following: i) Pivdennyi was an unsafe port when Olam nominated it as the load port on 26 February 2022 and it was prospectively unsafe for the entirety of the Delivery Period by reason of the Russian invasion. ii) Olam’s declaration of force majeure on 2 March 2022 was invalid on the grounds that a seller cannot nominate an unsafe port after it has become subject to an event of force majeure and then use that nomination to claim relief. iii) Olam was in default of the Contract and the date of default was 26 April 2022, as Holbud expressly kept the Contract open until that date. This date was agreed between the parties in the event that Olam was found to have been in default.

14. Olam’s second argument before the BOA is the primary focus of the present appeal and was described by the BOA as a “second and hitherto unargued issue: that Buyers themselves were unable to perform the Contract”. The essence of the argument was that The Finder , which had been nominated by Holbud, had remained in the Sea of Marmara up until 16 March 2022 when it departed for Novorossiysk in Russia, arriving there on 17 March. It stayed in Novorossiysk until 16 April 2022, when it departed on a laden voyage to Iran arriving on or about 15 May.

15. Olam submitted to the BOA that The Finder was therefore employed on other work from 16 March. It was said that the consequence was that Holbud was unable to perform its obligations under the Contract and therefore, having regard to the compensatory principle for the assessment of damages explained by Teare J in Flame SA v Glory Wealth Shipping Pte Ltd [2014] QB 1080 (“ Flame ”) at [81], [84] and [85], the burden of proof remained on Holbud to prove that, if there had been no repudiation by Olam, it would have been able to perform its obligations under the Contract. Olam submitted to the BOA that, in the absence of such proof, Holbud was only entitled to nominal damages for any breach.

16. The part of Teare J’s judgment on which Olam placed particular reliance explains the application of the compensatory principle in this context as follows: “85. The assessment of loss necessarily requires a hypothetical exercise to be undertaken, namely, an assessment of what would have happened had there been no repudiation. That enables the true value of the rights which have been lost to be assessed. The innocent party is claiming damages and therefore the burden lies on that party to prove its loss. That requires it to show that, had there been no repudiation, the innocent party would have been able to perform his obligations under the contract. If the court were to assume that the innocent party would have been able to perform, rather than to consider what was likely to have happened in the event that there had been no repudiation, the court might well put the innocent party in a better position than he would have been in had the contract been performed. The assessment of damages does require an assumption to be made, but it is not the assumption suggested by Mr. Akka. When assessing what the innocent party would have earned had the contract been performed the court must assume that the party in breach has performed his obligations.”

17. Olam submitted that it therefore followed that Holbud had the burden of establishing, with evidence, that, but for any repudiation, it would have been able to perform its obligations under the Contract. It was said that Holbud had adduced no evidence to prove this, still less to put in any doubt the clear implications of what was known about The Finder’s movements from which it was plain that, on and from 16 March 2022, Holbud was not itself ready, willing, or able to perform the Contract.

18. As part of this argument, Olam submitted to the BOA that Holbud had no right to substitute a vessel other than the one it had already nominated, an argument with which Holbud explicitly disagreed. As such, Olam said that, even if Holbud could establish any breach on the part of Olam (a point which is no longer live in the present appeal), the damages caused to Holbud by the breach must be assessed at nil.

19. The BOA did not accept these arguments, finding that the Olam was liable in damages for breach of the Contract in the sum of €4,820,760 (paragraph 13.37 of the Award). It reached that conclusion, having calculated the difference between the contract price and the market price per metric ton (paragraph 13.36 of the Award).

20. It did so having dealt earlier in the Award with the anterior point of principle raised by Olam. It made the following findings: “13.9 The second limb of Sellers’ appeal was the allegation that Buyers themselves were unable or would have been unable to perform their obligations, as the Contract did not afford Buyers any right to substitute their vessel. Relying on clause 6 of GAFTA 49, Mr Rookes argued that Buyers were not in a position to perform as they no longer had an available ship and they had no right to substitute the vessel as any substitution must arrive “no earlier than the estimated time of arrival of the original vessel nominated and always within the delivery period”, and that the notice of substitution should be given “no later than one business day before the estimated time of arrival of the original vessel”. 13.10 Given Sellers had by that time declared Force Majeure, this was an unattractive proposition and we summarily dismiss it accordingly.”

21. Clause 6 of GAFTA 49 (“clause 6”), is the Nomination of Vessel clause which also deals with vessel substitution. It reads as follows: “Buyers shall serve not less than [8] consecutive days’ notice of the name and probable readiness date of the vessel and the estimated tonnage required. The Buyer has the right to substitute any nominated vessel. Buyer's obligations regarding pre-advice shall only apply to the original vessel nominated. No new pre-advice is required to be given in respect of any substitute vessel, provided that the substitute vessel arrives no earlier than the estimated time of arrival of the original vessel nominated and always within the delivery period. Provided the vessel is presented at the loading port in readiness to load within the delivery period, Sellers shall if necessary complete loading after the delivery period and carrying charges shall not apply. Notice of substitution to be given as soon as possible but in any event no later than one business day before the estimated time of arrival of the original vessel.”

22. The reasons given in paragraph 13.10 for rejecting Olam’s submission based on the principle explained in Flame were expressed in a very condensed form. However, it appears from the language used by the BOA that the basis on which it rejected the point was that it was not open to Olam to run an argument that Holbud was “unable or would have been unable to perform [its] obligations, as the Contract did not afford [Holbud] any right to substitute”, for the simple reason that Olam had by then declared force majeure, which the BOA had determined elsewhere was wrongful. Apart from it being unattractive, no other reason for the summary rejection of that argument was advanced. In particular, there was no analysis of whether Holbud did in fact have a right to substitute under clause 6 or whether it would have done so. The BOA appears to have held that the mere fact of the declaration was what undermined the validity of Olam’s argument.

23. Olam sought leave to appeal the Award under s.69(2) (b) of the Act . It identified the question of law as being: Does the general principle of the law of damages which requires an innocent party to prove that, but for the repudiation, it would have been able to perform its obligations under the contract, not apply where the party in breach has declared force majeure? The form in which this question was posed is consistent with the view I have expressed as to the nature of the finding which the BOA had made in paragraph 13.10 of the Award.

24. In Holbud’s submissions in opposition to Olam's application for leave to appeal, it was submitted that what the BOA was referring to in paragraph 13.10 of the award is that Olam could not require Holbud to be in a position to perform the Contract as of 26 April 2022 when it had clearly indicated that it was never going to call for performance by its force majeure notice of 2 March 2022. It characterised this as an estoppel point. Holbud then submitted that, without saying so, the BOA then went on to make an estoppel finding that was richly dependent on the particular facts of the case.

25. Olam's response to this part of Holbud’s argument at the permission stage was that the Award could not fairly and reasonably be read as containing a finding of estoppel. It said that the point was not argued and that, if the BOA had intended to find an estoppel, it would have said so and would have given Olam the opportunity to address the point. It was also submitted that there were no findings of fact in the Award that could justify a conclusory finding of estoppel. It heavily criticised Holbud for attempting to adduce new evidence from a director of Holbud, Hasnain Merali, which was said to support the estoppel argument which had not been before the FTT or the BOA.

26. On 29 January 2025, having described the BOA’s reasoning on the damages point as opaque, Bryan J granted Olam permission to appeal against the Award in relation to two questions of law. The first question (“Question 1”) was slightly different from, but closely followed, the formulation advanced by Olam: Where a party is in repudiatory breach of a contract having wrongly declared force majeure, is the innocent party required to prove (in order to recover substantial damages) that, but for the repudiation, it would have been able to perform its obligations under the contract?

27. By the same order, Bryan J also gave Holbud permission to argue that the Award be upheld, based on the following further question of law (“Question 2”): On the true and proper construction of Clause 6 of GAFTA 49, and where a party has already nominated a vessel, and the counterparty is in repudiatory breach of the contract, having wrongly declared force majeure, is the party entitled to nominate a substitute vessel at any time prior to acceptance of such repudiation?

28. Bryan J did not make any specific reference to the estoppel argument in his brief reasons for making the order he did. However, in his reasons for directing Question 2, Bryan J pointed out that it was implicit from what was stated in the Award that Holbud was asserting not only that it would have been entitled to substitute but that it would have done so (otherwise such assertion served no purpose).

29. On this appeal, Olam submitted that the answer to Question 1 is yes and the answer to Question 2 is no. Holbud took the opposing position and submitted that the answer to Question 1 is no and the answer to Question 2 is yes. It is also Holbud’s case that this appeal should not be entertained at all, because Olam has failed to comply with s.70(2) (b) of the Arbitration Act 1996 . It is submitted that this is a threshold issue such that, if Olam cannot surmount it, the court has no jurisdiction to consider either Question 1 or Question 2. Although advanced as a threshold issue, consistently with the way in which the appeal was addressed in oral argument, it is more convenient to consider this point after explaining my conclusions on Question 1 and Question 2. Appeals under s.69: the correct approach

30. Although there were differences in emphasis, there was no significant dispute between the parties on the correct approach to an appeal under s.69 . In Alegrow SA v Yayla Agro [2020] EWHC 1845 (Comm) , also an appeal against an award made by the GAFTA BOA, Henshaw J summarised the position as follows: “48. Once leave has been granted, the general approach on a s.69 application is to be informed by what this Court has termed three “ guiding principles of fundamental importance ” ( Bunge SA v. Nibulon Trading BV [2013] EWHC 3936 (Comm) ; [2014] 1 Lloyd's Rep 393 , §§ 35-36 per Walker J, referring to statements of the Court of Appeal in MRI Trading AG v Erdenet Mining Corporation LLC [2013] 1 Lloyd's Rep. 638): (i) First, as a matter of general approach, the English court strives to uphold arbitration awards ( MRI Trading § 23 per Tomlinson LJ). (ii) Secondly, in order to give effect to the first principle, the court should read an arbitration award in a reasonable and commercial way, expecting as is usually the case, that there will be no substantial fault that can be found with it. It should not approach awards “ with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards and with the object of upsetting or frustrating the process of arbitration .” (ibid.) (iii) Thirdly, in cases of uncertainty the court will, so far as possible, construe the award in such a way as to make it valid rather than invalid (ibid.)

49. Walker J in Bunge added, however, that these principles “are not intended to, and do not, enable the court to give to an award a meaning which plainly was not intended by its authors” (§ 36).

50. In relation to a challenge to a GAFTA award, two further relevant considerations apply: (i) The first and second general principles mentioned above will apply a fortiori where " the tribunal comprises market men, since one is not entitled to expect from trade arbitrators the accuracy of wording, or cogency of expression, which is required of a judge " ( MRI Trading AG [2012] EWHC 1988 (Comm) ; [2013] 1 All ER (Comm) 1, 8g-h [15(a)] and 9f [16] per Eder J). (ii) Trade tribunal decisions are generally to be accorded deference where the arbitrators' experience assists it in determining a question of law, such as the interpretation of contractual documents or correspondence passing between members of an arbitrator's own trade or industry ( Kershaw Mechanical Services [2006] EWHC 727 (TCC) ; [2006] 4 All ER 79 , at § 57(2) per Jackson J).”

31. It was also not in issue that this approach gives rise to what has sometimes been called “a presumption in favour of the award” ( Bulk Ship Union SA v Clipper Bulk Shipping Ltd (“The Pearl C”) [2012] 2 Lloyd’s Rep 533 at [23]). In order to prevail, Olam must show that the BOA committed a clear error of law. As Mr Jason Robinson KC put it in Holbud’s skeleton argument, it is not enough that the BOA’s reasoning could have been more exemplary, nor is it enough to show that it is unclear whether an error was committed: The Pearl C at [29]. If that were to be the case, Olam’s remedy would have been to seek relief under s.70(2) of the Act , a point to which I will return at the end of this judgment.

32. It is also of note that, in paragraph [23] of The Pearl C , Popplewell J made clear that the court must be able to see that the tribunal has correctly identified the principles of law to be applied, before it can draw the usual inference that those principals of law have in fact been applied by the arbitrators. The Parties’ Submissions on Question 1

33. Part of Olam’s skeleton argument on Question 1 made submissions as to why the principle explained in Flame was good law and why the following view expressed by the editors of Scrutton on Charterparties and Bills of Lading 25 th edn at [20-001] is correct: “Until recently, there have been conflicting dicta and much debate about the proper approach to the assessment of damages in particular where the wrongdoer has committed a wrongful repudiation, anticipatory breach or renunciation and, in response, the innocent party has brought the contract to an end. This has now been resolved, at least at first instance, in favour of what has been described as the ‘compensatory principle’. This approach requires a hypothetical exercise to be undertaken, namely, an assessment of what would have happened had there been no repudiation. The burden lies on the innocent party to prove that, had there been no repudiation, the innocent party would have been able to perform its obligations under the contract.”

34. Mr Michael Ashcroft KC for Olam submitted that this view is also consistent with the opinions expressed in Halsbury’s Laws of England, Damages (Volume 29 (2024) at [601]), although he also recognised that it is not universally accepted that Teare J was correct on the issue of burden of proof, which was an important aspect of paragraph [85] of his judgment in Flame . Thus, in Benjamin’s Sale of Goods (12 th edn) (“Benjamin”) at [16-034] it is suggested that “there is much to be said for starting with a presumption that a party who has been released from having to further perform his obligations on the ground of the counterparty’s wrongful repudiation is to be treated as if he would have performed those obligations had the contract run its course.”

35. Against that background, Mr Ashcroft submitted that the decision in Flame was sound and the court should follow it. The effect of the manner in which Teare J described the principle is that the mere declaration of force majeure was neither here nor there. The fact that it may have been wrongful (although Olam did not freely accept that it was) went to liability for breach of the Contract. Taken without more, it was no answer to Olam’s case on the application of the compensatory principle in the assessment of damages, which is all that matters for the purposes of this appeal.

36. It follows from this that the essence of Olam’s challenge is that the BOA was wrong in law, because the finding made in paragraph 13.10 of the Award proceeded on the basis that the consequence of the declaration of force majeure was that it was not necessary for Holbud to comply with the requirements explained in paragraph [85] of Flame . It was because of its erroneous understanding of the law that the BOA did not grapple with the admitted fact that The Finder was unavailable for the purposes of enabling Holbud to perform its obligations under the Contract from 16 March 2022 (and in particular was unavailable on the default date), because it wrongly considered that the wrongful declaration of force majeure meant that it was not required to do so.

37. Put another way, it was submitted by Olam that, on the facts found by the BOA, Holbud had failed to prove any loss in circumstances in which, as at 26 April 2022, the date the Contract was terminated and the agreed date of default: i) The Finder had already been redeployed elsewhere by Holbud such that, absent a valid substitution, it had no vessel with which it could perform the Contract; and ii) the BOA had made no finding that Holbud was legally entitled to substitute a different vessel to perform, or that it could and would have done so.

38. Holbud on the other hand said that the issue raised by Olam on Question 1 as framed is irrelevant for the determination of this appeal. Consistently with the submission it made to Bryan J, this was not because it challenged the point of principle explained by Teare J in Flame (it did not do so), but rather because this principle did not determine the answer. It said that Olam was wrong to contend that the BOA suggested that, where a party is in repudiatory breach, the innocent party is not required to prove that it could have performed on the date that breach was accepted in order to recover damages; indeed, it noted that the BOA’s reasoning makes no reference to repudiatory breach.

39. Holbud’s case was that it could not be said that the reason the BOA rejected Olam’s argument based on Flame , was simply because the wrongful declaration of force majeure was itself a repudiatory breach without more. To make that argument would have cut across the essential reasoning of Teare J in Flame , a position which Mr Robinson eschewed. He did not therefore contend that a wrongful declaration of force majeure by Olam was, in and of itself, a sufficient legal basis for the BOA to reject Olam’s argument, and he submitted that it cannot be said that the BOA thought that it was.

40. Rather, Holbud submitted that the real issue was to identify the significance of the phrase “Given the Sellers had by that time declared force majeure …”. Holbud submitted that the BOA was there recognising that Olam was not just asserting that an event of force majeure had occurred. It was also making a finding that the consequence of Olam’s declaration was that Holbud was asserting that the Contract was suspended. It then submitted that it is necessary to read the Award as containing findings by the BOA which fitted the conclusions it expressed in 13.9 and 13.10 into a recognised legal construct. It said that all the BOA was doing by referring to the consequence of the wrongful declaration of force majeure was engaging in a common or garden application of waiver by estoppel.

41. Although not articulated or even referred to in the Award, it was not in issue that the matters of which the BOA must have been satisfied if it was indeed making a finding of waiver or estoppel are set out in Chitty on Contracts (35 th edn) (“Chitty”) at [28-064 and 28-065], by reference to Lord Ackner’s speech in Fercometal SARL v Mediterranean Shipping Co SA (“ The Simona ”) [1989] AC 788 , 805. Having first explained that there is no half-way house between affirmation (in which case the rights and obligations of both parties continue) and termination (in which case the rights and obligations of both parties which remain unperformed are discharged), the editors said the following: “Nevertheless, it may be that there are certain circumstances in which the innocent party may be released from performance of one or more of his obligations under the contract, notwithstanding the fact that he has not terminated further performance of the contract as a result of the wrongdoer’s breach. The first arises where the party in breach has, by words or conduct, represented to the innocent party that he will no longer require performance of a particular obligation under the contract, and the innocent party acts upon that representation. In such a case the party in breach will be estopped from contending that the innocent party still remains bound by that obligation.”

42. None of this is controversial, and it is plain from the way in which the point was explained in The Simona at p.805 that the relevant form of estoppel is where one party to a legal relationship is bound by a representation that they will not enforce their strict legal rights against the other, because the other has acted to its detriment in reliance on the representation: “Of course, it is always open to A, who has refused to accept B’s repudiation of the contract, and thereby kept the contract alive, to contend that in relation to a particular right or obligation under the contract, B is estopped from contending that he, B, is entitled to exercise that right or that he, A, has remained bound by that obligation. If B represents to A that he no longer intends to exercise that right or requires the obligation to be fulfilled by A and A acts upon that representation, then clearly B cannot be heard thereafter to say that he is entitled to exercise that right or that A is in breach of contract by not fulfilling that obligation.”

43. Holbud therefore submitted that the applicable elements of an estoppel of this kind are (a) a representation by Olam that it would not rely on its strict legal rights, (b) reliance by Holbud on that representation and (c) detriment suffered by Holbud in doing so. Holbud then submitted that, because the necessary findings had been made, it was not required to show that it could perform its obligations under the Contract on 26 April 2022, whether by demonstrating that The Finder was available for that purpose or otherwise. The effect of the waiver was that Olam was no longer able to enforce the contractual obligations which Holbud had originally undertaken to perform.

44. Holbud’s submission was that the BOA’s reasoning must be viewed in the light of these established principles. The finding that it was an “unattractive proposition” for Olam to suggest that it could demand contractual performance by Holbud while its declaration of force majeure was still in place must have been because the BOA was satisfied that Olam had waived its legal right to take the point. It was submitted that Olam was therefore estopped from asserting that Holbud was under any continuing contractual obligations to perform for so long as the Contract was suspended under clause 13, which was Olam’s own position right up to the moment the Contract came to an end on acceptance by Holbud of Olam’s repudiatory breach.

45. Put another way, the reason Holbud said that its own inability to perform was of no import was because, by declaring force majeure on 2 March 2022, Olam had represented to Holbud that it considered all obligations under the Contract to be suspended, such that it would not perform and did not require performance from Holbud. This was a representation on which Holbud relied to its detriment. It was then said that, in those circumstances, Olam was estopped from insisting on performance from Holbud until such time (if any) as the force majeure event was declared to be at an end.

46. On this point, Mr Robinson submitted that it did not matter that the language of representation, waiver and estoppel did not appear in the Award. He relied on the summary of applicable principles set out in the passages from Alegrow and The Pearl C cited in paragraphs 30 and 31 above. He also relied on passages from Bingham J’s judgment in Andre et Cie v Cook Industries Inc [1986] 2 Lloyd's Rep 200, including that “A trade tribunal brings to the task of interpretation certain insights denied (to a greater or lesser extent) to the Court”.

47. He then submitted that the application of this approach was a result of the parties’ choice of GAFTA arbitration, which demonstrated the parties’ preference for commerciality above legal clarity. This included the need for the court to read the Award in a reasonable and commercial way having regard to the fact that the members of the BOA were trade arbitrators and could not be expected to use the accuracy of wording required of a judge. He submitted that the BOA cannot be criticised for not using the word ‘estoppel’ in its Award. The BOA’s reasoning was “tolerably clear,” making findings on the common-sense concept of waiver despite not having used the legal terminology of an ‘estoppel,’ in the Award.

48. As to the representation, Holbud pointed out that in paragraph 3.13 of the Award the BOA recorded Olam’s formal notice to Holbud that “performance of the contract is suspended in accordance with the terms of clause 13.” The reference to clause 13 in the notice meant that the suspension for which it provided was for the duration of the force majeure event and (as the language of clause 13 provides): “if the Event of Force Majeure ceases before the contract or any unfulfilled part thereof can be cancelled, Buyers/Sellers shall notify Buyers/Sellers without delay that the Event of Force Majeure has ceased.”

49. Holbud submitted that Olam’s notice amounted to a clear representation that, while performance of the Contract was suspended by the event of force majeure, Olam did not require The Finder (or indeed any other vessel) to be ready willing and able to take delivery of the corn unless and until it notified Holbud that it considered the event of force majeure to be at an end. It was also submitted that at no point did Olam lift its force majeure declaration or call for performance by Holbud. It followed that the representation was maintained and continuing up to the time of breach.

50. As to reliance, Mr Robinson submitted in his skeleton argument that there was no doubt that Holbud acted on Olam’s declaration of force majeure by putting The Finder to other work. He said that the court could be forgiven for thinking this was so obvious it goes without saying: why else would Holbud have deployed its vessel elsewhere? Holbud also highlighted the commercial incentive behind redeploying The Finder , rather than leaving it at anchorage in the Black Sea, incurring detention costs, financial losses, and potentially breaching its duty to mitigate its loss.

51. It was also submitted that the representation need not have been the sole cause of Holbud’s actions so long as it in some way influenced its conduct or was “one of the factors… relied upon”. In support of a further submission that there is an evidential presumption that the representee was in fact induced to rely on the representation, it cited the following passage from the judgment of Lord Denning MR in Brikom Investments Ltd v Carr [1979] 1 QB 467 at 483A: “Once it is shown that a representation was calculated to influence the judgment of a reasonable man, the presumption is that he was so influenced”. It followed, so it was submitted, that it was then up to the promisor (in this case, Olam) to establish that the promisee’s conduct was not induced by the promise and that it was therefore up to Olam to establish that Holbud did not rely on its declaration of force majeure in redeploying The Finder rather than the other way around.

52. As to detriment, it was submitted on behalf of Holbud that “it is enough if the promisee has altered their position in reliance on the promise so that it would be inequitable to allow the promisor to act inconsistently with it” (Chitty at [7-044]). It was said that this test was satisfied in the present case because, following Olam’s representation, Holbud changed its position by redeploying The Finder to other work.

53. Olam’s answer to this part of Holbud’s case was to dismiss the allegation that the BOA had concluded that there had been waiver by estoppel as hopeless for a number of reasons. The first was that Holbud did not argue before the BOA that any form of waiver or estoppel might be an answer to Olam’s defence to a claim for anything more than nominal damages. It follows that the BOA did not have the benefit of any submissions on the facts required to be found in order to prove the case. If the BOA had intended to find an estoppel, it is to be expected that the Award would have said so in terms.

54. In his oral submissions, Mr Ashcroft noted that the words ‘waiver’ and ‘estoppel’ are not esoteric legal concepts, but are commonplace in commodity disputes. Whether or not that is correct so far as concerns the concept of an estoppel, Holbud accepted that waiver would have been a well-known concept for the BOA, and indeed it was used in the Award in other contexts. Thus, if the BOA’s decision had been based on a finding of waiver, it is fair to expect those words to have appeared in the Award.

55. Mr Ashcroft responded to Mr Robinson’s reliance on Alegrow by pointing to paragraph [49] of Henshaw J’s judgment in which, citing Walker J’s judgment in Bunge at [36], he noted that the guiding principles were “not intended to, and do not, enable the court to give to an award a meaning which plainly was not intended by its authors.” He also emphasised the passage in The Pearl C which made clear that the presumption in favour of the award applies: “where the tribunal has correctly identified the issues which fall to be decided, the usual inference will be that those issues have been decided. Where the tribunal has correctly identified the principles of law to be applied, the usual inference will be that the tribunal has applied those principles of law”.

56. He submitted that that is not the present case because the BOA had not identified waiver by Olam of its legal rights as one of the issues to be determined. He also submitted by reference to Cottonex Anstalt v Patriot Shipping Mills Ltd [2014] EWHC 236 (Comm) ( “Cottonex” ) at [35] that it: “is generally impermissible is to raise a new point of law which requires consideration of factual materials and in relation to which material findings might have been sought and made had the point been raised at the arbitration… The respondent can argue new points of law based on [the findings in the award]. If, however, the failure to argue the point which the respondent wishes to raise has the result that not all potentially relevant findings have been made then it should not be open to it”.

57. As a result, it is Olam’s case that there can be no presumption in favour of the Award because it does not identify estoppel or waiver as an issue to be decided, and Holbud did not advance any argument about waiver before the BOA and does not seek to argue otherwise.

58. Mr Ashcroft went on to submit that, where a finding of estoppel had not been raised by the parties, it would have been the clearest procedural irregularity for the BOA to have decided what was a central issue in the case on the basis of a point that was not advanced before them, because Olam would have been denied the opportunity to address it. This would have been a breach of the BOA’s duty to act fairly between the parties under s.33 of the Act . Mr Ashcroft submitted that it was inherently unlikely that the BOA acted in this way and that the court should lean against any interpretation of the Award that would involve such a conclusion.

59. Olam submitted that this point was especially pertinent on these facts, given that there was a formal process involving the exchange of multiple written submissions and extensive oral submissions over the course of a 2-day hearing before the BOA. I was told that at the hearing, Holbud was represented by an experienced commodities lawyer who, as paragraph [10.19] of the Award makes clear, was very familiar with the concept of ‘waiver’ (albeit referring to this concept on a different point).

60. Holbud’s response to this argument was that any point on irregularity did not go anywhere because, as the Privy Council explained in RAV Bahamas v Therapy Beach Club [2021] AC 907 at [49] ( “RAV Bahamas” ), citing Popplewell J in Reliance Industries v Union of India [2018] 2 All ER (Comm) 1090 (“ Reliance ”) at [32]: “it is enough if the point is ‘in play’ or ‘in the arena’ in the proceedings, even if it is not precisely articulated… a party will usually have had a sufficient opportunity if the ‘essential building blocks’ of the tribunal’s analysis and reasoning were in play in relation to an issue, even where the argument was not articulated in the way adopted by the tribunal.” It was said that the “essential building blocks” were manifestly in place before the BOA, notwithstanding that the term ‘estoppel’ was not used.

61. Mr Robinson also submitted that RAV Bahamas confirms the “high threshold” for finding serious irregularity under s.68 of the Act , which is limited to “extreme cases” (per RAV Bahamas , at [30]-[31]). Holbud submitted that this is not such a case. In any event (and as explained further below), Holbud contends that it was incumbent on Olam, before bringing this appeal, to seek clarificatory reasons from the BOA under s.70(2) (b) of the Act and, after doing so, then to have brought a s.68 appeal if it considered that the BOA’s reasoning gave rise to a procedural irregularity. Holbud said that, having failed to do so, Olam cannot now shut down a reasonable construction of the Award (i.e., making a finding of waiver) by asserting procedural irregularity.

62. Mr Ashcroft submitted that any such construction of the Award would be inconsistent with the absence of any findings of fact that could justify a conclusory finding of estoppel (i.e., there was no actual finding of any relevant representation by Olam, any reliance by Holbud or any detriment). On this point, he again relied on The Simona at p.806A-C in which Lord Ackner rejected what was also a new estoppel argument (in the form explained in the passage from his speech which I have already cited) on the grounds that there were no findings of fact in the Award that could support that submission.

63. Olam submitted that the same must follow here. Thus, Mr Ashcroft said that the BOA made no finding as to the precise form of the representation. Even though Olam’s wrongful declaration of force majeure may have carried with it a statement that it regarded the Contract as suspended, that does not mean that it also promised Holbud that it did not require Holbud to be ready, willing and able to take delivery of the corn unless Olam notified that it considered the event of force majeure to be at an end. Although Olam had contended for force majeure with the consequence of suspension, it consistently reiterated that it remained committed to complying with its contractual obligations.

64. Mr Ashcroft also placed considerable emphasis on the lack of any finding of reliance in the Award and the failure of Holbud to identify any such finding in its skeleton argument or oral submissions. It was said that Holbud’s submission that finding reliance is “so obvious it goes without saying” is unprincipled because reliance is a question of fact, which only the BOA could find.

65. In his submissions on what he said was the significance of the absence of the necessary findings of fact, Mr Ashcroft relied on the judgment of Lord Hamblen in Sharp Corp Ltd v Viterra BV [2024] UKSC 14 ( “Viterra” ) where he explained at [71]: “The court’s jurisdiction under section 69 of the Act is limited to appeals on questions of law. It has no jurisdiction in relation to errors of fact and no power to make its own findings of fact”.

66. Of course a finding of fact may be inferred from other findings, but the position has to be clear. Lord Hamblen held (at [73] and [74] of his judgment in Viterra ) that the statement of principle set out in the judgment of Steyn LJ in Geogas SA v Trammo Gas Ltd (The Baleares) [1993] 1 Lloyd's Rep 215 , page 228 col 2 (viz. that the only inferences which a court might arguably be able to draw from arbitrators’ findings of fact are those which are truly beyond rational argument), might be putting the point too high. Nevertheless, Lord Hamblen went on to hold that “it is necessary to show that the inferred finding is one which inevitably follows from the findings which have been made.”

67. At the core of Olam’s case was Mr Ashcroft’s submission that, because Holbud did not advance any estoppel case before the BOA, it is not surprising that the BOA did not deal with it and made no findings of fact directed in support of it. Furthermore, in light of the principles confirmed by Lord Hamblen in Viterra , the findings of fact which have been made do not enable the court to infer that the BOA did in fact make sufficient findings to support Holbud’s case on estoppel given they were not expressly set out in the Award. This is because it did not inevitably follow from what occurred either: i) that in wrongfully declaring force majeure, Olam represented to Holbud that it did not require Holbud to comply with any of its obligations under the Contract for so long as Olam maintained its position that the parties’ obligations were suspended under clause 13; or ii) that Holbud acted in reliance on any such representation in redeploying The Finder elsewhere.

68. Mr Ashcroft also submitted that there are findings in the Award that are positively inconsistent with any case on estoppel. In particular the fact that Holbud rejected Olam’s force majeure declarations and consistently made it clear that it intended to perform the Contract (see [3.14] of the Award) was said to have been irreconcilable with any case that Holbud relied on a representation by Olam that it had been released from its obligations under the Contract. It was suggested that this may explain why Holbud’s legal representatives did not attempt to run any case on estoppel before the BOA.

69. In his skeleton argument, Mr Ashcroft raised a further point, in answer to an attempt by Holbud to apply for the admission of new evidence which had been foreshadowed at the permission stage. The statement by Mr Merali and its accompanying exhibits (see paragraph 25 above) was not adduced before the BOA, but it was relied on by Holbud in the argument it made to Bryan J in order to buttress the reliance aspect of its new case on estoppel. In the event, Holbud did not pursue its application for permission to rely on that evidence on the substantive hearing of the appeal and said in its skeleton argument that “any argument as to the admissibility of Mr Merali’s witness evidence (adduced by Holbud in opposing leave to appeal) is inapposite” and that “Holbud does not need to rely on this to uphold the Award”. But Olam argued that the initial attempt to do so was sufficiently unusual to demonstrate that, at the time of the application before Bryan J, Holbud recognised that there was nothing in the Award that could justify a factual finding in its favour.

70. In his oral submissions, Mr Ashcroft also questioned Holbud’s submission in relation to its ‘commercial incentive’ to redeploy the vessel (see paragraph 50 above). He asked rhetorically, why, if that was the case, did Holbud not simply terminate the Contract in response to Olam’s repudiatory breach and claim damages? He said that this could have been done at any time from 2 March to the end of the Delivery Period. He submitted that what Holbud could not do without prejudicing its claim to more than nominal damages, was keep the Contract alive, insist on Olam’s performance, but then redeploy the vessel such that Holbud was not in itself in a position to perform. Conclusions on Question 1

71. The first difficulty with Holbud’s argument, a difficulty which Olam had raised in its submissions to Bryan J (and which Holbud itself recognised), is that the BOA did not use the language of estoppel or waiver in the Award. Indeed, it goes rather further than that, because the BOA made no express finding that a representation or promise had been made by Olam, let alone one in the form now relied on, or that Holbud had in fact acted in reliance on what Olam said or did. I agree with Olam’s submission that the concept of waiving a right is one which any tribunal of trade arbitrators is likely to have articulated if that was a finding they had intended to make. Indeed Holbud came close to accepting that was the case by submitting that, although estoppel may be a technical legal term, waiver is a common sense concept. In my view, the absence of an express finding is a clear indication that the BOA did not intend to make the finding which Holbud now submits they did.

72. Having said that, I accept Holbud’s submission that, if findings of fact in relation to each of the elements of the estoppel can be inferred as having been made by the BOA, even if not expressly set out in the Award, that is capable of being sufficient and may indicate that a conclusory finding of waiver or estoppel has been made even if not articulated as such. However, the court must be satisfied that the necessary findings were actually made, which in turn requires the court to be satisfied that the inferred findings are ones which inevitably follow from the conclusions which the BOA did in fact reach (per Lord Hamblen in Viterra at [74]).

73. It seems to me that this is a more difficult task in circumstances in which Holbud itself made no submissions to the BOA that what occurred amounted to a waiver by Olam of its right to insist that Holbud should hold itself ready willing and able to perform up until the moment of termination, whether by reference to the form of what was said to be the promise, the proof of reliance by Holbud, or both. I also consider that there is real force in Olam’s submission that the court should be slow to conclude that the BOA decided the case on the basis of a legal principle such as waiver or estoppel, which is the basis on which one party’s legal contractual rights are now said by the other party to be unenforceable at the relevant point in time (the agreed date of default), but which was not mentioned in the argument before the BOA.

74. Although it is a basic principle that any party must have a fair opportunity to deal with arguments which affect its legal rights, I recognise that it may have been open to the BOA to conclude that it would not be unfair to make a finding of estoppel if the point was in play or in the arena in the proceedings (see the description of the position by Popplewell J in Reliance at [32]), even if not articulated in conventional legal language. However, the court must be able to see that the tribunal has correctly identified the issues to be decided and it is only where it has correctly identified the principles of law to be applied that the usual inference will be that the tribunal has applied them ( The Pearl C at [23]).

75. In the present case, I do not think that Holbud is correct to submit that the essential building blocks of the estoppel argument were in play before the BOA. In my view, neither the nature of the representation nor the element of reliance were sufficiently before the BOA to make it likely that it would have concluded that it could make a finding of estoppel on the basis of the arguments that were presented to it. This makes it impossible for this court to infer that the BOA made any such finding from the explicit findings it did in fact make. This can be illustrated by reference to each of the elements required to establish an estoppel.

76. As to the representation or promise, apart from the undisputed fact that Olam represented that it considered the parties’ obligations to be suspended because of force majeure, there was no attempt to articulate before the BOA that this carried with it a representation over and above an assertion by Olam of what it considered the position to be. I do not agree that it inevitably follows from Olam’s assertion that the Contract was suspended in accordance with the terms of clause 13, that it also promised Holbud that it did not require it to be ready, willing and able to take delivery of the corn unless Olam notified that it considered the event of force majeure to be at an end.

77. This further representation was never advanced in argument before the BOA and was never found by the BOA to have been made. But it also seems to me that what is said by Holbud to be a promise by Olam that it (Holbud) was released from its obligation to perform until Olam gave notice that it considered the event of force majeure was at an end, is quite different in quality from what was in fact said, i.e., an assertion by Olam that it was entitled to rely on force majeure so as to suspend the parties’ obligations under the Contract. It also seems to me that it is unrealistic to conclude that it might ever have been made.

78. While I can see that the BOA might have been able to infer from Olam’s assertion that it was also making a promise or representation that the parties’ obligations under the contract would be suspended if Holbud accepted Olam’s assertion, it is not at all obvious how such a promise could have been inferred by the BOA where the representation was not conditional on Holbud withdrawing its contention that it was not open to Olam to rely on force majeure. However, in the event I consider that this is ultimately no more than speculation. The short answer to Holbud’s point on this part of the argument is that a claim to estoppel requires a finding of fact as to the form of the promise or representation that was made. In the present case this was neither argued by Holbud, nor found by the BOA, nor does to it follow inevitably from the findings that were made.

79. The point is even clearer in relation to reliance, which Holbud was unable to link to any findings which were made by the BOA. Thus, there is nothing in the Award which is capable of being construed as an express finding that Holbud redeployed The Finder in reliance on the representation which Holbud submitted Olam had made, nor is it possible to identify reliance by inevitable inference from a finding which was in fact made. I have reached that conclusion notwithstanding Mr Robinson’s reliance on the statement made by Lord Denning MR in Brikom v Carr (see paragraph 51 above). It may well be the case that a presumption of inducement arises where it is established that a representation was calculated to influence the judgment of a reasonable man, but there is no finding by the BOA in the present case that any representation by Olam fulfils that requirement. In asserting its own case in the way it did, it is not at all obvious that Olam was acting in the manner which I understand Lord Denning to have had in mind.

80. I also do not agree with Holbud’s submission that it is obvious that its redeployment of The Finder was induced by a representation in the form it now asserts. As Mr Ashcroft submitted, any inference of reliance must at least be consistent with Holbud’s own conduct at the time. In my view, it is difficult to see how an inference of reliance can be drawn in the light of Holbud’s assertion, maintained up until acceptance of the repudiatory breach on 26 April 2022, that it intended to perform the Contract. In the absence of any relevant findings by the BOA, this makes it impossible for the court to conclude that the reason The Finder was redeployed was because Holbud thought that it would not be held to its performance obligations under the Contract.

81. In the Award, the BOA recorded that Holbud had submitted that it would not have been commercial to keep The Finder waiting. It also recorded that Olam had submitted that this was nonsense and that, if it was in breach of its delivery obligations (which it did not accept), Holbud’s remedy was either to terminate the Contract and redeploy the vessel at that stage or to keep the contract on foot and keep the vessel waiting. It was said that what Holbud could not do, anyway without forfeiting its right to claim damages to which it would otherwise have been entitled, was to demand that Olam perform, keep the Contract on foot and in the meantime redeploy the vessel so that Holbud was itself not in a position to perform.

82. I see force in Mr Ashcroft’s reiteration of Olam’s submission before the BOA on this point, but the BOA did not make a finding one way or the other. Its significance for present purposes is that it highlights the difficulty of inferring a finding of reliance in the absence of any conclusion by the BOA as to the commerciality of Holbud’s position on the point.

83. In these circumstances I have reached the conclusion that the answer to Question 1 is yes. The basic principle is that the wrongful declaration of force majeure is not a reason to relieve the innocent party from its obligation to prove (in order to recover substantial damages) that, but for the repudiation, it would have been able to perform its obligations under the contract. The position would be different if it is determined that the party in repudiatory breach is estopped from relying on its contractual right to enforce the innocent party’s obligation to perform. In the present case, the fact that the BOA was not asked to find, and did not find, the necessary elements to establish an estoppel means that the basic principle applies and the BOA was wrong in law to reach the conclusion that it did in paragraph 13.10 of the Award. The Parties’ Submissions on Question 2

84. Question 2 (paragraph 27 above) was ordered to be determined as an alternative basis on which the Award could be upheld. It was common ground that the point was not decided by the BOA. It relates to the true construction of clause 6 (paragraph 21 above). More specifically, it relates to the meaning and effect of that part of clause 6 which provides that notice of substitution by Holbud was to be given as soon as possible but in any event no later than one business day before the ETA of the original vessel (see the last sentence of the part of clause 6 cited in paragraph 21 above, which I shall call the “Substitution Notice provision”). The significance of this question is that it is a necessary part of Holbud’s argument that it could have performed under the Contract after redeployment of The Finder on 16 March and that it had a legal right to substitute another vessel at that stage.

85. Mr Ashcroft opened his argument on Question 2 by submitting that, in order to uphold the Award on the basis of a favourable answer to Question 2, Holbud must also establish that it could and would have substituted the vessel as a matter of fact. He submitted that Holbud cannot succeed on either point. By contrast, it was Holbud’s position that, even if The Finder was unable to perform on 26 April 2022, this was of no consequence because, if Olam had called for performance, Holbud would have been entitled to nominate a substitute vessel on or about that date and would have done so.

86. The first issue which arises in relation to Holbud’s contractual entitlement to substitute is the true construction of the Contract. Olam submitted that, once Holbud had nominated The Finder as the vessel to perform the Contract, which it did on 24 February 2022, the deadline for nominating a substitute vessel was fixed to 5 March 2022. This was because its ETA at the time of nomination was 6/7 March 2022 and Holbud’s right to give notice of substitution was expressed to subsist until “no later than one business day before the estimated time of arrival of the original vessel”. Olam submitted that this was a condition to Holbud’s contractual right of substitution.

87. Olam’s argument that Holbud lost its right to substitute after 5 March 2022 therefore rests on the ETA of The Finder as being 6/7 March 2022. It was said by Olam not just that compliance with the time period was a precondition to a valid substitution, but also that there was no finding in the Award that Holbud had a right to substitute a vessel any later than “one business day before the estimated time of arrival of the original vessel” or even that it purported to do so.

88. In support of his argument that the Substitution Notice provision was a condition to Holbud’s right to substitute, Mr Ashcroft cited A v B (The “Tai Hunter”) [2022] 1 Lloyd’s Rep 65 (at [71]) to the effect that stipulations as to time in mercantile contracts, particularly in delivery clauses in commodity contracts, can (absent some contrary indication) be taken to entail that time is of the essence. He relied on the reference in The Tai Hunter (at [65] and [66]) to the judgment of Andrew Smith J in Ramburs Inc v Agrifert SA [2016] Bus LR 135 (“ Ramburs ”) at [12] in which it was held that a buyer who has nominated a vessel is entitled to withdraw the nomination and replace it with another, provided that the second nomination is in time to allow the vessel so nominated to fulfil the buyer’s contractual obligations and is otherwise in accordance with the contract.

89. As Henshaw J said in The Tai Hunter (at [66]) , Ramburs is authority for the proposition that a nomination once made can be replaced “so long as the second nomination is timely”. The timeliness of the substitution goes to its validity, a point that is also made in Benjamin at [20-118] and supported by the language used by the Court of Appeal in Cargill UK Ltd v Continental UK Ltd [1989] 2 Lloyd’s Rep 290 (“ Cargill ”).

90. Mr Ashcroft said that these authorities are strong support for his submission that provisions regarding timings of nominations and substitutions are conditions, which must be precisely complied with for a nomination or substitution to be valid. It followed that Holbud was not legally entitled to substitute an alternative vessel as at 26 April 2022. Any such purported substitution would have been way out of time.

91. On this aspect of the construction argument, Holbud submitted that, properly viewed, the Substitution Notice provision is a warranty or innominate term such that, even if there were to have been a breach, the substitution would have been effective; Olam would be entitled to damages and nothing more. Mr Robinson cited Bunge Corporation v Tradax Export [1981] 1 WLR 711 , 719F ( “Bunge” ) and Cehave MV v Bremer MbH (The Hansa Nord) [1976] 1 QB 44 , 70H-71B in support of the proposition that, although broadly speaking time will be considered to be of the essence of a mercantile contract, which means that time limits are to be treated as conditions, it is also important to recognise that contracts are made to be performed and not to be avoided. As Roskill LJ said in The Hansa Nord at p.71B: “I think the court should tend to prefer that construction which will ensure performance and not encourage avoidance of contractual obligations.” It was said that, if Holbud had sought to perform with a substitute vessel on 26 April (or thereafter), but had not given Olam one business day’s notice of that substitution, Olam would have suffered no (or de minimis ) loss and any breach would thus have been irrelevant.

92. In further support of this submission, Holbud cited another passage from Bunge at p.725F in which Lord Roskill confirmed the statement of Bowen LJ in Bentsen v Taylor, Sons & Co [1893] 2 QB 274 ( “Bentsen” ) (at p.281), to the effect that it is by a process of discerning the intention of the parties that the status of a term is ascertained. In Bunge , the relevant obligation which was a notice of readiness clause, was found to be a condition primarily because other obligations were dependent upon it (see per Lord Roskill at p.729F-H). If one party does not complete an obligation, its counterparty cannot complete any obligations which are contingent on it.

93. Holbud therefore submitted that, even if it is a general rule that a contractual obligation to give a valid nomination by a certain time is a condition, this does not determine the status of the Substitution Notice provision. That can only be determined by construing clause 6 in the context of the Contract as a whole. Mr Robinson said that, under the contractual scheme, any notice of substitution was of minimal importance to Olam, because all that mattered to it was that any substitute vessel was interchangeable with the original vessel. He also said that clause 6 reflected the position at common law as explained by Taylor LJ in Cargill at 296/7: “at common law and absent special contractual terms, a buyer c[an] change his mind about the vessel he would use so long as the vessel provided was suitable and available in time”.

94. In summary, Holbud’s submission on this aspect of the case was that since breach of a condition affects “the substance and foundation of the adventure which the contract is intended to carry out” ( Bentsen , at 281), a breach of the time requirements of the Substitution Notice provision cannot be considered as such. Instead, it must either be a warranty or an innominate term.

95. In any event, Holbud labelled Olam’s construction of the Substitution Notice provision as absurd, when considered in the light of both the contractual scheme which had been agreed between the parties and Olam’s subsequent conduct. As regards the contractual scheme, Holbud reiterated that it was required to provide Olam with not less than eight days’ notice of its nominated vessel’s ETA and name, which it did on 24 February 2022, nominating The Finder and declaring its ETA to be 6/7 March. This then triggered two things: (a) Olam’s obligation to nominate a port, which it did by nominating Pivdennyi, and (b) Holbud’s obligation to update the ETA periodically before the arrival of the vessel at the nominated port and to give loading instructions to Olam at least two working days prior to the vessel’s arrival. This was the context in which Holbud was required to give notice of substitution at the latest one business day “before the estimated time of arrival of the original vessel”.

96. This contractual scheme was undermined by Olam’s failure to nominate a valid load port, a failure which in turn affected each subsequent step contemplated by the contractual scheme. In other words, Holbud said that Olam’s attempt to construe the deadline for substitution by reference to its initial ETA of 6/7 March does not take account of a situation in which Olam had failed to comply with its own earlier contractual obligation. It was then said that Holbud was meant to give an updated ETA 7, 5, 3, 2 days and 24 hours before the vessel’s arrival at the load port in the form of what is called the “precise master’s notices of the vessel’s arrival”, although this could never be done because the load port was never validly nominated. It called this an “updated ETA” and said that this was what determined the deadline for the operation of the Substitution Notice provision.

97. Thus, in both its written and its oral submissions, Holbud described the vessel’s initial ETA as “otiose” as soon as Olam nominated an invalid load port, an event which occurred on 26 February. It is said that it would make a nonsense of the Contract to suggest that this ETA then applied to an arrival at an invalidly nominated load port under blockade which had, by that time, been closed for two days. In short, it was submitted that it was not possible to give an ETA to Pivdennyi for the simple reason that there could be no arrival at Pivdennyi at all.

98. It also followed, so it was submitted, that any construction of clause 6 which allowed such an outcome was absurd. The purpose of the Substitution Notice provision was to provide a minimum of one day’s warning of the substitution to amend any vessel-specific paperwork with the port authorities. This obligation must have fallen away in circumstances in which Olam was refusing to perform, because there was no paperwork to amend or cargo to ready for the vessel’s arrival at any port.

99. Mr Ashcroft’s answer to this line of argument was that there was no finding in the Award that the initial ETA became otiose. Findings in relation to it were made in paragraph 13.7 of the Award and there is no suggestion that the ETA was ever withdrawn, amended or could otherwise be disregarded, whether in the context of clause 6 or at all. He said that, even if it were to be arguable that it had no effect after the nomination of Pivdennyi, which was by then unsafe, that was a matter for the BOA but was not addressed by it.

100. It is also Holbud’s case that, if the court were to uphold Olam’s construction of clause 6 (and more specifically the Substitution Notice provision), it would be allowing Olam to benefit from its own wrong, i.e., the wrongful nomination of an invalid load port and the wrongful declaration of force majeure. The court should lean against any such construction, as illustrated by the following passage from Lewison on The Interpretation of Contracts (8 th edn) under the heading that “A contract will be interpreted so far as possible in such a manner as not to permit one party to it to take advantage of his own wrong”: “7.108 This principle is not a rule of law; rather it is an aspect of the principle of interpretation that leans against interpretations that produce unreasonable or absurd consequences that could not have been intended. The contractual intention is still to be decided by reference to the ordinary principles applicable to the interpretation of contracts.”

101. In short it was submitted that, as there was no port to arrive at on 6 or 7 March because Olam had wrongly nominated an unsafe one, allowing Olam to rely now on that initial nomination to justify Holbud losing its right to substitute another vessel post-5 March, would be the clearest example of allowing a party to benefit from its own wrong.

102. Mr Ashcroft did not accept that Olam’s construction would allow it to benefit from its own wrong. He pointed to the lack of any causal connection between Olam’s wrong and the contractual rights under clause 6 on which it seeks to rely. He submitted that this argument merely represented a variant of Holbud’s estoppel argument and that Holbud’s submissions about the purposes of the Substitution Notice provision were unfounded. He said that no such finding was made in the Award and Holbud’s interpretation is limited, omitting the importance of certainty and finality which the Substitution Notice provision introduced into the contractual regime, factors which may have been relevant when dealing with third parties.

103. It was also said by Olam that, as at 26 April 2022, there was another reason why Holbud had lost its right to substitute another vessel. There could be no question of any substitute vessel arriving within the Delivery Period as required by clause 6, because it had already expired. This picked up the parts of clause 6 which provided that no new pre-advice was required to be given in respect of any substitute vessel, “provided that the substitute vessel arrives no earlier than the estimated time of arrival of the original vessel nominated and always within the delivery period” and the additional proviso that “the vessel is presented at the loading port in readiness to load within the delivery period”.

104. In its submissions to Bryan J, Holbud said that it was plain that the question of whether the substitute vessel arrived within the Delivery Period went nowhere because that part of clause 6 was concerned with the obligation to give pre-advice on a substitute vessel and was irrelevant to the question of whether Holbud had a subsisting right to substitute. I do not think that is correct, because the Contract required not less than 8 days’ pre-advice which could not be given in time if the Delivery Period had already expired.

105. Mr Ashcroft pointed out that the contractual period for Delivery was defined as “1/15 March 2022 (Both dates included) no extension” and submitted that, in any event, the Delivery Period had not been extended to 26 April as a matter of fact. Olam said that Holbud made no submission to the BOA that this had happened and there was no finding to that effect in the Award. He also cited a passage from Benjamin (at [20-097]) in support of a submission that a buyer is never entitled to nominate a ship which is not in a position to arrive for loading the goods within the relevant delivery period.

106. In his oral submissions, Mr Ashcroft also noted that the case which Holbud advanced before the BOA was inconsistent with any suggestion that the Delivery Period had been extended because paragraphs 4.21 to 4.23 of the Award cited email correspondence between Holbud and Olam which proceeded on the basis that, as at 21 and 25 April, both parties were contending that the Delivery Period had expired on 15 March, more than 35 days before. Similarly, in its 2 March 2022 rejection of Olam’s declaration of force majeure (paragraph 3.14 of the Award) Holbud maintained the original contractual Delivery Period (albeit in the context of the need for pre-advice on performance by Olam based on Romanian origin). Olam therefore submitted that, quite apart from the fact that the BOA made no relevant finding that the Delivery Period was ever extended beyond 15 March 2022, it is not now open to Holbud to contend to that effect.

107. Holbud’s final submission on the law was that, even if it was wrong on the other Question 2 points, Olam is estopped from insisting on any obligation that Holbud was required to exercise its right of nomination by 5 March. This was another new point which, unlike the estoppel argument relating to Question 1, was not even advanced at the permission stage. It was said that, by its declaration of force majeure , Olam asserted that the parties’ rights and obligations were suspended from 2 March, which was before the deadline for any substitution nomination. It was submitted that, in those circumstances, the substitution deadline never arose, but was held in abeyance until such time as Olam revived the parties’ obligations under the Contract by declaring that the (purported) event of force majeure was at an end. The argument was then made that as Olam never did so, Holbud would still have been entitled to nominate a substitute vessel if Olam had called for performance on 26 April 2022.

108. I can deal with the factual question more shortly. Olam submitted that, even if Holbud were able to show that it was legally entitled to substitute an alternative vessel to perform the Contract as at the 26th April 2022, Holbud had adduced no evidence before the BOA to prove that it would in fact have been ready, willing and able to do so and there are no findings of fact in the Award to that effect. It was also said that, although by the time of the hearing Holbud no longer sought to rely on the evidence of Mr Merali, its prior attempt to do so (before Bryan J) revealed the absence of any findings in the Award capable of making good Holbud’s contention that it could and would have produced a substitute vessel. It was submitted that this is fatal to Holbud’s attempt to uphold the Award on the back of a favourable answer to Question 2. The court is not permitted to go behind the findings of fact which appear from the face of the Award ( Alphapoint Shipping Ltd v Rotem Amfert Negev Ltd (The “Agios Dimitrios ”) [2004] EWHC 2232 (Comm) per Colman J at [6] and Cottonex at [27]-[32] per Hamblen J) and has no jurisdiction to make its own findings of fact ( Viterra at [71]).

109. When giving permission to appeal, Bryan J floated a suggestion to the effect that it may possibly be argued that Holbud did not need “any evidence…beyond assertion” to support a finding that it could and would have substituted in fact. He raised that possibility on the basis that it was implicit from what was stated in the Award that Holbud was asserting not only that it would have been entitled to substitute but that it would have done so, because otherwise such an assertion served no purpose.

110. In his oral submissions, Mr Robinson said it was wrong to suggest that Holbud could not show that it could and would have been able to substitute a vessel as at 26 April 2022. He also drew attention to paragraph [85] of Flame , highlighting in particular that “the assessment of loss necessarily requires a hypothetical exercise to be undertaken, namely, an assessment of what would have happened had there been no repudiation.” Based on this, Mr Robinson argued that, as a result of Olam’s declaration of force majeure, Holbud was not required to show that it had a vessel that was ready, willing and able on 26 April. If the force majeure notice had been withdrawn and Olam gave notice that it intended the parties to perform, it is Holbud’s case that the only performance required of it would have been to react to such a notice and show that it retained the legal right to substitute The Finder for another vessel on that date.

111. Moreover, it was said by Mr Robinson that Olam would have needed to allow for a reasonable time for compliance, in support of which he relied on Chitty at [7-047], Hughes v Metropolitan Railway 1877 2 App Cas 439 , 448 and Tool Metal v Tungsten Electric [1955] 1 WLR 761 (HL), at 785. He said that it was not necessary for Holbud to prove that there was in fact a vessel able to perform and submitted that this approach finds support in Bryan J’s formulation of the last part of Question 2: “is [Holbud] entitled to nominate a substitute vessel at any time prior to acceptance of such repudiation?” (emphasis added). Conclusions on Question 2

112. The appropriate starting point is the construction of clause 6. It makes provision for two periods of time based on the “estimated time of arrival of the original vessel”. One relieves the buyer (Holbud) from its obligation to give pre-advice in respect of any substitute vessel provided that the substitute vessel arrives no earlier than the estimated time of arrival of the original vessel nominated. The second requires notice of substitution to be given as soon as possible, but in any event no later than one business day before the estimated time of arrival of the original vessel.

113. It seems to me that this drafting contemplates a time certain which is set by reference to a process which involves the buyer’s obligation to nominate the vessel and its ETA no less than 8 days before the arrival of the vessel at the load port, in accordance with the original pre-advice. Once set, that is the ETA for the purposes of clause 6. Despite Holbud’s suggestion to the contrary, I can discern nothing in the language of the Contract which contemplates that the ETA of the original vessel is intended to refer also to “the 7, 5, 3, 2 days and 24 hour’s precise master’s notices of the vessel’s arrival at the load port” which do not appear to me to be any part of the contractual scheme with which the Substitution Notice provision is concerned. These periods are concerned with the narrower question of what the buyer is required to do to keep the seller informed of the vessel’s progress towards the load port.

114. It is also important to note that clause 6 contemplates that the ETA will fall within the Delivery Period, set in the present case as 1-15 March 2022, which is itself the period within which the Contract contemplates that the nominated vessel will arrive for loading. There is provision in clause 8 for an extension of the Delivery Period for up to ten days where the buyer serves notice, but there is nothing to indicate that Holbud did that in the present case.

115. It follows that the straightforward language of clause 6 means that notice of substitution is required to be given at least one business day before the initial ETA. That is a perfectly coherent contractual structure, because the initial ETA was set at the time of the pre-advice nominating the original vessel and the notice of substitution is simply a further nomination in respect of which it is to be contemplated that the substitute vessel should be identified before the time at which the original vessel was expected to arrive at the load port.

116. I quite accept that the parts of the contractual scheme I have mentioned do not in themselves contemplate the possibility that there may be some form of invalidity or breach at an earlier stage in the chain of events. But that does not mean that it is necessary to include language in clause 6 which is not there. In a situation in which one of the preceding steps has not occurred, the normal remedies for breach of contract will apply unless it can be said that no ETA was given at all, an argument which is not made by Holbud, presumably because if it were to do so, the right to substitute on which its whole case on Question 2 is founded would no longer subsist at all.

117. This leads to the next question, which is whether the Substitution Notice provision requires strict compliance with its terms, including in particular any time limits by reference to the ETA of the original vessel, in order for any notice of substitution to be effective. This is the argument advanced by Olam. The alternative argument advanced by Holbud is that any non-compliance with the time limit simply sounds in damages, with the notice of substitution taking effect in accordance with its terms.

118. In my judgment, Olam is correct in its submissions on this point. It appears from the summary of the applicable principles explained in the judgment of Henshaw J in The “Tai Hunter” at [65] to [71] not just that stipulations as to time in mercantile contracts can, absent contrary indication in the contract itself, be taken to entail that time is of the essence, but also that this principle is applicable where the issue is the consequences of the failure to give a timely notice to nominate a vessel. I was unable to identify anything in the Contract which indicated that a contrary view should be taken in the present case.

119. I do not accept that the fact that one of a chain of events which the contract contemplates will occur before the ETA is held to be invalid means that Holbud’s initial ETA somehow became otiose or no longer operated as a time condition to the exercise by Holbud of its right to substitute. The fact that there could be no arrival at the nominated load port because it was unsafe may, as it has in the current case, enable the buyer to treat the seller as being in repudiatory breach, but that is a quite different question to the issue of whether its right to substitute another vessel is thereby extended for so long as it does not do so.

120. I also do not accept that the Delivery Period was extended, as suggested in a number of places in Holbud’s skeleton argument. I do so largely for the reasons advanced by Mr Ashcroft. In particular, it is significant that the BOA made no finding to that effect and, although Holbud said that the FTT did make such a finding, I do not think that is right. What the FTT said was that Holbud “effectively” gave an extension to Olam. It is clear to me that this was not advanced as a formal extension under the terms of the Contract, but rather a reference by the FTT to the commercial consequences of Holbud’s decision not to accept what has subsequently been held to be Olam’s repudiatory breach at that stage. In my judgment, that did not affect the fact that the original Delivery Period (and the original ETA) were still in place in accordance with the original terms of the Contract.

121. Likewise, I do not agree with Holbud’s submission that, if the court were to uphold Olam’s construction of clause 6, it would be allowing Olam to benefit from its own wrong. The reason for this is the one given by Mr Ashcroft. There is no causal link between what were held by the BOA to be wrongful acts by Olam, viz. the wrongful nomination of an invalid load port and the wrongful declaration of force majeure, and the parties’ contractual rights under clause 6. Those rights include in particular Olam’s right to require any notice of substitution to be given no later than one business day before the ETA of the original vessel. In other words, I accept Olam’s submission that by insisting on contractual compliance with the Substitution Notice provision, which it is entitled to do for so long as the Contract was not terminated for repudiatory breach by Holbud, it was not thereby benefiting from its own wrong.

122. Even if I were to be wrong on the points of law, I think that Mr Ashcroft is also correct in his submission that it is not open to the court to conclude not just that Holbud would have been entitled to substitute, but that it would in fact have done so. Quite understandably, Bryan J expressed the view that it is implicit in the Award that the BOA recognised that Holbud were making such an assertion and that, for that reason, it was appropriate to permit Holbud to argue the point on appeal. However, it is incontrovertible, and indeed the contrary was not argued, that the BOA made no finding that this is what would have occurred. It seems likely that the reason it did not do so was because it wrongly concluded that the wrongful declaration of force majeure was itself a sufficient answer to the point.

123. However, what would have happened remains a fact that is required to be proved, because otherwise the aspects of the compensatory principle described in paragraph [85] of Flame would not have been established. The court cannot make its own findings of fact (per Lord Hamblen in Viterra at [74]), nor can it make an assumption as to what would have occurred, unless the inference flows inevitably from the factual findings which were made (per Lord Hamblen in Viterra at [74]). I do not accept that Holbud has established that this is such a case.

124. In reaching that conclusion, it is right to emphasise that Holbud did not seek to rely on the additional evidence it had put before Bryan J (and which he referred to in passing in paragraph 2 of his brief reasons for ordering the determination of Question 2). Holbud’s contention was that, practically speaking, it would have taken steps to identify a substitute vessel whether from its own fleet or the Black Sea spot market. I accept that it need not have done more than that in order to satisfy the hypothetical referred to in paragraph [85] of Flame , although I am much more doubtful about its submission that it did not need, legally, to go further and prove that there was in fact a vessel able to perform. I do not see how, in the absence of such proof it could have shown that it was ready, willing and able to react by identifying a substitute vessel.

125. Be that as it may, it seems to me that the important point is that no findings which would satisfy the hypothetical were made by the BOA. It follows that, even if I were to be wrong as to Holbud’s legal entitlement to substitute so long after the expiry of the contractual Delivery Period and the initial ETA, the court cannot conclude that it would have done so.

126. It follows that I agree with Olam’s submissions and the answer to Question 2 is no. Section 70(2)(b) of the Act

127. By s.70(2) of the Act : “An application or appeal may not be brought if the applicant or appellant has not first exhausted (a) any available arbitral process of appeal or review, and (b) any available recourse under section 57 (correction of award or additional award).”

128. By s.57(3) of the Act : “The tribunal may on its own initiative or on the application of a party (a) correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award, or (b) make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in the award.”

129. Holbud submitted that because this is a threshold issue, if Olam cannot surmount it, the appeal fails in limine . Mr Robinson explained that he did not lead with Holbud’s point on s.70(2) , because a proper understanding of the arguments on Question 1 and Question 2 demonstrated that Olam’s true complaint was not that the Award contained a finding of law that was obviously wrong, but that the Award did not contain the extent of the reasoning which Olam would have liked to see.

130. Holbud submitted that s.70(2) reflects a policy to bar appeals under s.69 in circumstances where the arbitral process can “correct itself, where possible, without the intervention of the court” (per Cooke J in Torch Offshore v Cable Shipping [2004] 2 Lloyd’s Rep 446 (at [28])). Mr Robinson also cited Popplewell J (as he then was) in The Pearl C at [29] in support of the proposition that “the jurisdiction of the court is engaged where there has been an error of law, not where there may have been but the matter remains unclear”. It is said that, because Olam cannot show that on the face of the Award the BOA committed an error of law, it should have remedied the alleged ambiguity of the reasoning by asking for clarification from the BOA under s.57(3) of the Act before making any s.69 appeal to the court. Holbud went on to suggest that the reason Olam did not do so was because it suspected that the BOA would simply furnish clarificatory reasoning to supplement paragraph 13.10 of the Award.

131. Mr Ashcroft started his submissions on this part of the case by pointing out that no argument based on s.70(2) of the Act was advanced at the permission stage. It was therefore a new point which had not previously been raised by Holbud. Although Bryan J had satisfied himself that the award could not be corrected or rescinded by recourse to section 57 of the Act , this was a confirmatory statement which the judge had included of his own initiative, given the fact that neither party had taken the view at that stage that the Award involved any ambiguity that could be corrected.

132. The fact that Holbud did not take the point at the permission stage and that Bryan J said what he said is an indication that Holbud’s point on ss.57 and 70 may not be a substantial one. However, it would be wrong not to consider it on its merits, not least because, as Sir Ross Cranston pointed out in Pan Ocean v Daelim Corpn [2023] EWHC 391 (Comm) at [34]-[37], the restrictions listed in s.70(2) apply separately to the requirements for obtaining leave to appeal under s. 69(2) . It is therefore open to the judge at the full hearing of the appeal to revisit the conclusions as regards ss. 50 and 70(2) reached by the judge at the permission stage.

133. As a matter of substance, Olam submitted that there was clearly no genuine ambiguity in the BOA’s Award. The BOA’s reason for dismissing the argument based on Flame (i.e., that it was an “unattractive proposition”) was wrong in law, but clear. Mr Ashcroft also submitted that s.70(2) is a narrower provision than suggested by Holbud. He contrasted it with s.70(4) of the Act , which does not found any submission by Holbud, but which provides that: “If on an application or appeal it appears to the court that the award— (a) does not contain the tribunal’s reasons, or (b) does not set out the tribunal’s reasons in sufficient detail to enable the court properly to consider the application or appeal, the court may order the tribunal to state the reasons for its award in sufficient detail for that purpose.”

134. Olam submitted that it cannot be correct that s.70(2) bars any appeal in which an application for further reasons might be necessary. He said that s.70(2) and s.70(4) should be read together so as to avoid a tension between them. This is best achieved by treating s.70(2) (b) as confined to cases with clear and obvious ambiguities in the Award which require correction.

135. I prefer Olam’s submissions on this point. In my view, the issues on this appeal are not about the clarification or removal of any ambiguity in the award, let alone the removal of a clerical mistake or error arising from an accidental slip or omission. In my judgment, the BOA went wrong, because it considered that a finding that the declaration of force majeure by Olam, amounting as it did to an assertion by Olam that it considered the parties’ obligations under the Contract to be suspended, was sufficient without more to relieve Holbud from the obligation to prove that it was able to perform the Contract if it were to seek substantial damages.

136. This is not a case in which the Award contains ambiguities which might be capable of clarification to ensure that it reflects the intention of the tribunal in a more comprehensible manner. It is a case in which there is a complete absence of any factual findings to support Holbud’s arguments and the result for which it contends. Part of the reason for this is that the arguments on which Holbud now seeks to rely were not made to the BOA, but part of it is that the BOA thought that Olam’s wrongful assertion of force majeure was itself a reason for not requiring Holbud to show that it was able to perform at the time of default. It was wrong in law to reach that conclusion. Final Disposition

137. It was submitted by Mr Ashcroft in his skeleton argument that, if I were to answer the questions of law in the manner for which Olam contended, the court should make an order setting aside the Award by deleting paragraphs 14.1 and 14.4 and replacing them with a finding that Holbud’s claim for substantial damages is dismissed. It is said that remission to the BOA would serve no useful purpose because it would be inevitable that the award would be varied as proposed by the court.

138. Holbud submitted that, in the event that Olam were to succeed in its appeal, the right course would be remission to the BOA for further findings to be made. At the hearing, Mr Ashcroft objected to this submission, more specifically in so far as the purpose of remission was to seek to persuade the BOA that findings of reliance could and should be made. He said that this was misconceived and contrary to the basic principles of finality considered in Cottonex .

139. I agree with Mr Ashcroft on this point. In my view, the court should not remit the case to the BOA to enable it to make factual findings in support of a legal argument that was not run before the BOA. As with the position of the defendants in Navios International Inc v Sangamon Transportation Group [2012] EWHC 166 (Comm) , the reality of what is sought by Holbud is the opportunity to present further evidence and seek further findings from the BOA, which were not considered necessary at the time of the arbitration. That is no more an appropriate case for the exercise of the power to remit in the present case than was the exercise of the s.70(4) power in Navios . As Hamblen J said in that context at [47] of his judgment in Navios , the parties must live with the case which was put at the time. There is no room for later further and better thoughts and it would be plainly contrary to the policy of finality for this to be allowed or encouraged.

140. As to costs, the parties are at liberty to make further submissions should they chose to do so, but as a point was raised in the written argument I think it is appropriate for me to indicate my provisional view. The point raised was Olam’s submission that the Court should make a special costs order to reflect the “Respondent’s unacceptable evidential approach in relation to the application for permission to appeal and this appeal itself.”

141. While Holbud dropped its reliance on Mr Merali’s evidence at the hearing, Mr Ashcroft nevertheless submitted that Holbud’s attempt to put impermissible evidence before the Court demonstrated a serious case of breach worthy of sanction. I took this to mean that, anyway in the event of Olam’s success on the appeal, I should order indemnity costs (whether in whole or in part) to mark the court’s disapproval of this conduct.

142. My provisional view is that I disagree with Mr Ashcroft on this point. While I have little doubt that the initial attempt to adduce further evidence was misconceived, the fact that Holbud has been unsuccessful on Olam’s appeal means that (unless the general rule is displaced), it will have to pay Olam’s costs in any event. While the attempt to rely on Mr Merali’s evidence was in some respects out of the norm sufficient to justify an award of indemnity costs, I do not think that this would be a proportionate response to what occurred, more particularly as the additional costs incurred by Olam as a result of this conduct are unlikely to have been significant.

143. The parties are to agree an order which reflects the conclusions I have reached in this judgment. I will determine on the papers any disagreement as to its precise terms.