Key takeaways
Remission to Tribunal
Court will not remit where it can decide issue for itself.
Purpose of remission
Not intended for advancing new claims or reviving independent claims that have been dismissed.
Respondent’s Notice
Allows Court to know what are the parties’ arguments on appeal.
Trans Trade RK SA v Sebat Shipping and Trading Company [2026] EWHC 1761 (Comm) (14 July 2026)
In an earlier decision, the Court allowed an appeal under s.69 Arbitration Act 1996 (1996 Act) by the claimant Charterers against an arbitral award (Award) by which the Tribunal had allowed the Owners’ demurrage claim in relation to a voyage charterparty for the Sebat: see our article Court decides laytime dispute in favour of charterers | Hill Dickinson.
An issue subsequently arose whether the Owners’ additional or alternative claim under the charterparty should be remitted to the Tribunal. The Court has decided that remission would be inappropriate in the circumstances of this case.
The decision is useful for clarifying the legal and procedural principles applicable to remission of an arbitral award and when the Court might exercise its discretion to do so.
The background facts
The voyage charterparty, concluded on 9 April 2022, incorporated the Synacomex 2000 form (Continent Grain Charterparty) including Clause 11, the fumigation clause, which provided in relevant part that ’Charterers undertake to pay Owners all necessary expenses incurred because of the fumigation and time lost thereby shall count as laytime or time on demurrage…’
The cargo was fumigated on completion of loading in Constanta, Romania. On 14 May 2022, at the discharge port of Brake, Germany, it was delayed for several days before being permitted to discharge due to excessive levels of phosphine (that was used in the fumigant) being detected in the holds. Eventually, the Vessel completed discharge on 30th July 2022.
Earlier proceedings
In the arbitration, the Tribunal upheld the Owners' claim for demurrage at Brake under the charterparty. It was unable to reach a conclusion as to why the fumigant did not disperse more quickly and found that neither the Owners nor the Charterers were proven to be responsible for any actionable fault in this respect.
The Owners had claimed an indemnity/damages, contending that the fumigation had been carried out in breach of Clause 11. The Tribunal dismissed this claim on the basis that it was a claim for the detention of the Vessel which had been liquidated by the demurrage already awarded to the Owners.
On appeal to the Court under s.69 of the 1996 Act, the Court held that Owners’ demurrage claim should have been dismissed because no valid NOR had been tendered and laytime never commenced.
The Court was subsequently asked to decide whether the Clause 11 alternative/additional claim should be remitted to the Tribunal because the award in relation to demurrage had been set aside.
The relevant considerations were:
whether remission was appropriate having regard to the parties' substantive cases advanced before the Tribunal
whether remission was permissible in circumstances where the Owners had neither sought to challenge the Award by way of an appeal under s.69 nor filed a Respondent's Notice.
The Commercial Court decision
The Court explained that remission might be directed by the Court for a number of reasons, all of them resulting from the successful appeal on a point of law from the decision of the arbitral tribunal. For example:
If, in order to determine the point of law which arises on appeal, the Court requires the Tribunal to make further findings of fact in order to determine the true basis of the tribunal's conclusions.
There is something further for the Tribunal to consider and upon which its judgment could be exercised afresh, for example where issues in dispute relating to the point of law which has been dealt with by the Court require determination in light of the evidence before the Tribunal.
Claims or counterclaims which were rejected by the Tribunal, but on the basis of conclusions which have been undermined on appeal, fall to be remitted to the Tribunal for further consideration.
On the other hand, an award will not be remitted by the Court in the following circumstances:
If an issue was not canvassed or argued before the Tribunal by reason of one party not advancing a case before the Tribunal, remission would not be appropriate in those circumstances; it is not appropriate to allow a party to present a case to the Tribunal not previously canvassed. Therefore, if the relevant legal argument was not advanced by the respondent in the arbitration proceedings, remission does not provide an opportunity for further findings of fact to be made in support of such a legal argument.
If the Court is able to answer how the correct legal principles should be applied to the facts of the case, there is no need for remission, and the Court is able to vary the Award accordingly.
If remission would serve no useful purpose, for example if there is no reason to think the Tribunal would come to a different decision, remission may be refused.
The Court found that in the absence of a valid demurrage claim, the Owners did not have a claim under Clause 11. The Tribunal had held correctly that the demurrage provisions of the charterparty liquidated any losses caused by the detention of the Vessel and so any claim for time lost by the detention of the vessel was limited to demurrage. The Tribunal had, therefore, dismissed the Clause 11 claim.
The Court did not see on what basis the claim for demurrage under Clause 11 could succeed when it had been dismissed under the laytime/demurrage provisions of the charterparty.
Even if this was wrong and the Clause 11 claim was substantially different from the ordinary demurrage claim, Owners should have sought to challenge the Tribunal’s decision to dismiss the Clause 11 claim by way of an application for permission to appeal under s.69 of the 1996 Act. The Owners did not do so. They served a Respondent’s Notice but that did not refer to Clause 11.
The dismissal of the claim under Clause 11 by the Tribunal was the dismissal of an independent head of claim, irrespective of the reasons given by the Tribunal for that dismissal and its treatment of that claim was either correct or incorrect as a matter of law. However, no application had been made by the Owners for permission to appeal.
The Court stated that remission and a Respondent’s Notice were two different things. The Respondent's Notice essentially sets out the grounds on which the respondent seeks to uphold the award. Remission, as well as the variation or setting aside of an award, are remedies which are available to the Court in disposing of an appeal under s.69 of the 1996 Act.
As to the Respondent’s Notice:
If an award is sought to be upheld by a respondent to an application for permission to appeal under s.69 on grounds not set out in the award (either because the respondent's arguments have not been dealt with by the tribunal or because they have not been accepted by the tribunal), then the respondent must file a Respondent's Notice.
That Respondent's Notice must be filed before the application for permission to appeal is to be determined by the Court so that the Court knows what the arguments are that the parties intend to advance. Otherwise, the respondent cannot rely at the appeal hearing on any other grounds for upholding the award, not dealt with in the award.
It would be inappropriate to allow remission to the tribunal of a further ground for upholding the tribunal's decision, even though the grounds relied on by the tribunal were the subject of challenge by the claimant, if that ground were not set out in a Respondent's Notice.
The requirement of such arguments and issues to be included in a Respondent's Notice is consistent with the overriding objective so that the claimant is in a position to know in advance what arguments are to be advanced by the respondent and therefore what issues and claims/counterclaims are still potentially alive.
The Court therefore concluded that a Respondent’s Notice was required in respect of the Clause 11 claim.
The Court further highlighted that, assuming that demurrage might be recoverable under Clause 11, even if it was not recoverable under the laytime/demurrage provisions of the charterparty, there was a separate question as to how much of the detention of the Vessel was caused by ’fumigation’ within the meaning of Clause 11. That was not a matter which the Tribunal had addressed or determined expressly.
Additionally, the original Clause 11 claim extended beyond the normal demurrage claim because it included other losses and expenses. However, Owners now appeared only to wish to claim the amount limited to the ordinary demurrage claim, but to do so under Clause 11.
In conclusion, as a Respondent's Notice was required in respect of the Clause 11 claim, but no Respondent's Notice was served, the Owners' pursuit of the Clause 11 claim should not be permitted and the Clause 11 claim should not be remitted to the Tribunal.
If that was wrong, and the claim under Clause 11 went beyond a claim for demurrage, then the recourse open to the Owners was to seek to appeal from the Award pursuant to s.69, but they had not done so.
Comment
The case highlights the importance of complying with procedural requirements and ensuring that all court documents are drafted carefully and comprehensively to include all relevant arguments and submissions.
Where a challenge is being made to an arbitral award, close attention should be paid to the bases for such a challenge and whether there are independent heads of claim which require separate consideration.
The decision also confirms that remission is not a procedural second chance for a party whose alternative claim or legal basis has not been properly preserved. The Court made clear that remission is intended to address matters arising from a successful appeal itself and not to enable parties to advance new arguments, revive independent claims that have already been dismissed, or circumvent the requirement to challenge adverse findings through a timely appeal or a properly drafted Respondent’s Notice.
From a practical perspective, parties should ensure that all alternative grounds for upholding or challenging an award are identified and expressly pursued at the appropriate stage of the proceedings, as failures in this regard may prove impossible to remedy through a subsequent application for remission.
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