Posted: 24/10/2025
On 24 September 2025, the London Circuit Commercial Court delivered a judgment in African Distribution Company SaRL v AASTAR Trading Pte Ltd [2025] EWHC 2428 concerning an attempt to resist enforcement of a London arbitral award on the alleged basis that service of documents was ineffective.
The decision reviews a number of authorities concerning service by email in arbitration, along with the remedies available to a non-participating party to challenge an award.
From May 2021 to March 2022, AASTAR entered into numerous contracts to supply Indian rice to ADC, all of which provided for GAFTA arbitration in London.
During the performance of those contracts, the buyer ADC used generic email addresses adc@adc.ci and adc_ci@yahoo.fr to correspond with AASTAR regarding matters such as letters of indemnity, outstanding payments, and quality. There ultimately arose an impasse whereby ADC was demanding discounts in respect of reported quality issues while also holding back outstanding payments for goods. Throughout this time, ADC never told AASTAR not to use ADC's generic email addresses.
On 1 June 2023, AASTAR sent a letter before claim for outstanding sums of €1,895,099.61 and $299,000 due under 16 contracts, which was ignored. Then, on 20 July 2023, AASTAR allegedly served notice of arbitration on ADC to the two generic email addresses.
Thereafter, the arbitration took its course without ADC participating, eventually resulting in an award dated 21 February 2024 in the amounts claimed. All in all, in the course of the proceedings, 26 emails from AASTAR, its lawyers or GAFTA were sent to ADC's generic email addresses. ADC however claimed to be oblivious to the arbitration until it obtained a copy of the award in local Ivorean enforcement proceedings on 8 July 2024. ADC furthermore alleged that they were not formally served in those proceedings until 30 July, which prompted ADC to bring its arbitration claim before the London court on 27 August 2024.
ADC was seeking a time-extension under section 80(5) Arbitration Act 1996 in order to challenge the award for lack of jurisdiction under section 67 and for serious procedural irregularity under section 68. A third challenge was also brought under section 72(1), which allows a party who does not participate in an arbitration to challenge inter alia whether the tribunal is properly constituted. All three challenges were predicated on the allegedly defective service.
His Honour Judge Tindal considered the merits of ADC's case that service was invalid, as the presence of an obviously strong or weak case would be relevant to his discretion to extend time.
Witness evidence for ADC, given nine months after proceedings were commenced and two years after the arbitration started, stated that the inboxes of the generic email accounts had been checked and nothing could be found relating to the arbitration. It was speculated the emails might have been filtered as ‘spam’ and deleted ‘over time’.
Referring to guidance in Bernuth Lines v High Seas Shipping [2006] 1 CLC 403, Judge Tindal acknowledged that the one-size-fits-all approach to service under the court's Civil Procedure Rules is not an appropriate benchmark by which to determine whether service by email is effective in arbitration. While the rules for service of court proceedings are intended to be suitable for litigants in person as much as commercial parties, arbitrations tend to be conducted by business parties only, who have access to lawyers. In this regard, section 76(3) of the Arbitration Act 1996 is more flexible in stating that, in the absence of any agreement on service, a document may be served 'by any effective means.'
The proper question, therefore, was whether ADC had been given a reasonable opportunity to present their case.
Unlike service of court proceedings, there was no requirement for the defendant to communicate their willingness to accept service at a particular email address. However, the notice must be despatched to what is, in fact, the defendant's email address, and not be rejected by their system.
It was also apparent from Sino Channel Asia v Dana [2016] Bus LR 778 that service must accord with principles of agency. The email address used must be one for which the recipient has authority, real or ostensible, to receive the arbitration notice personally or disseminate it within the company. Where there are multiple email addresses relating to different divisions or international offices of the defendant, it is important to select the appropriate domain.
Judge Tindal also considered dicta from Glencore v Conqueror [2017] Bus LR 2090, distinguishing between individual and generic email addresses:
'Where an individual e-mail address is used, the sender will reasonably expect the e-mail to be opened and read by the named individual. With a generic e-mail address, the sender will not, at least usually, know the identity of the person who will open and read the e-mail. [But] if the generic address has been promulgated by the organisation, whether on its website or otherwise, the sender can reasonably expect the person who opens the e-mail to be authorised internally to deal with its contents if the subject matter falls within the scope of the business activity for the purpose of which the generic e-mail address has been promulgated.'
In the present case, the judge considered it to be 'arguable' that ADC's use of both its generic email addresses in the management of the various contracts was sufficient promulgation, although this would ultimately be an evidential issue for a trial.
In discussing the speculative suggestion that the arbitration documents may have been spam-filtered, the judge quoted at length from Bermuth:
'They bear none of the hallmarks of ‘spam’. On the contrary they called for serious attention…. If the e-mails never reached the relevant managerial and legal staff, that is an internal failing which does not affect validity of service and for which [the defendant] has only itself to blame.'
Judge Tindal ultimately concluded that 'if a notice is received at an appropriate email address but misunderstood as spam, it has still been served, just like a claim form posted to a firm of solicitors which they accidentally dispose of.'
In the light of dicta in Bermuth observing that '[i]f the sender does not require confirmation of receipt, he may not be able to show that receipt has occurred', the learned judge went on to consider 'the absence of read receipts evidentially in saying I am unable to find as a fact the emails were received by ADC.'
It is respectfully suggested that litigants would benefit most in their service strategy through the use of delivery receipts in addition to read receipts. Ironically, if a sender requests a read receipt, Outlook will prompt the recipient to decide 'yes' or 'no' whether to communicate receipt even before they may have been able to read the message. Contrastingly, delivery receipts are automatic, are similarly requested via Outlook in advance of sending, and simply confirm whether the email reached the intended server.
In practice, many defendants will decline to remit a read receipt, for fear of foregoing any possible value in a defective service defence. Equally, legal practitioners may feel unsure whether acknowledging receipt would appear to be in their clients' best interests.
Section 70(3) Arbitration Act 1996 made clear that any challenge under sections 67 and 68 must be brought within 28 days of the award.
In determining whether to grant an extension of time, Judge Tindal considered the seven 'Kalmneft factors' originating from AOOT Kalmneft v Glencore [2001] 2 All ER (Comm), namely:
'(i) the length of the delay; (ii) whether, in permitting the time limit to expire and the subsequent delay to occur, the party was acting reasonably in all the circumstances; (iii) whether the respondent to the application or the arbitrator caused or contributed to the delay; (iv) whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed; (v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration or the costs incurred in respect of the determination of the application by the court might now have; (vi) the strength of the application; and (vii) whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined.'
Any determination would also be influenced by the importance of ensuring finality in arbitration.
Having formed the view that jurisdictional challenge under section 72(1) is not confined to pre-award relief and not subject to a 28-day time-limit, it followed that ADC could bring its section 72(1) application without needing a time-extension. The judge did, however, decide against granting the extension for the section 67 and 68 challenges. Notably, more than five months had passed since the award was given and 'ADC has not shown any more than an arguable case' that the documents were not properly served. The judge was also clear that he would have reached the same decision 'even if I am wrong on s.72(1) and it is not available to ADC'.
ADC v AASTAR is certainly not spam. The decision is an excellent point of reference for arbitration litigants contemplating an effective service strategy in the absence of an agreed-upon service method. ADC v AASTAR analyses relevant discussion from almost two decades of case law in distilling the important agency considerations surrounding promulgation of generic email addresses and the personal authority of email recipients, along with evidential proof of receipt in fact.
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