Commercial Disputes Weekly – Issue 25222 July 2025

Arbitration
In a dispute arising out of the Fadhili gas programme project in Saudi Arabia and subcontracts for electrochemical elements of the works, Tecnicas has successfully challenged an ICC preliminary award under section 67 of the Arbitration Act 1996. As a result, the ICC tribunal did not have jurisdiction because the parties agreed to ad hoc London arbitration, rather than ICC arbitration. In reaching its conclusion, the Commercial Court considered the interplay of various contractual documents including the purchase order and the general terms and conditions (“GTC”), which contained conflicting arbitration agreements. The contract provided that the purchase order took precedence over the other documents. The arbitration agreement in the GTC was inconsistent with the agreement to ad hoc arbitration in the purchase order and so the latter prevailed. The court rejected an argument that for the arbitration to be subject to ICC rules was merely a procedural matter. The court held that it was a substantive part of the arbitration agreement.

Tecnicas Reunidas Saudia for Services & Contracting Co Ltd v Petroleum Chemicals and Mining Company Ltd [2025] EWHC 1785 (Comm), 14 July 2025

Enforcement
This decision is a further instalment in the long running proceedings by the claimant bank to recover debts owed to it by the defendants. The bank obtained an anti-enforcement injunction against a judgment of the Sharjah courts that had been obtained fraudulently. The defendants had fabricated documents showing that the BVI companies (over the shares of which the bank had exercised its security) owed significant debts to a further defendant company, Globe. The ultimate aim of this fraudulent scheme was to ensure certain properties remained in the possession of the family of the first, second and third defendants. The claimants obtained various declarations as to the sham nature of the documents and the fraud on the Sharjah Court to obtain judgment against the BVI companies, as well as an injunction preventing Globe seeking to enforce the judgment in any jurisdiction.

Commercial Bank of Dubai PSC and others v Al Sari and others [2025] EWHC 1810 (Comm), 15 July 2025

Arbitration – Sale of goods
The Commercial Court has allowed appeals under section 69 of the Arbitration Act 1996 against decisions of the GAFTA Board of Appeal. The dispute arose out of non-payment for the cargo by the buyer and the issues included the buyer’s allegation that the retention of cargo clause meant that property in the goods had not passed to the buyer and so the seller had no entitlement to an action for the price. The award found in favour of the seller. The Commercial Court held that the Board of Appeal had misdirected itself on section 49 of the Sale of Goods Act 1979, which related to when an action for the price could be brought. The seller did not satisfy the requirements of that section and was only entitled to a claim in damages. No claim in damages was made in the arbitration. The award was replaced with a dismissal of the claim.

Trans Trade RK SA v State Food and Grain Corp of Ukraine [2025] EWHC 1803 (Comm), 17 July 2025

Aviation
In the context of a claim for damage to a consignment of 500 boxes of fresh asparagus, the Commercial Court has provided important guidance on the interpretation of article 18 of the Montreal Convention 1999. The issues related to the definition of and the burden of proof for an “event causing damage” within article 18(1) and whether liability can be avoided by application of the exceptions under article 18(2). The court held that the event causing damage took place during the carriage of the cargo by air from Lima to Amsterdam in that temperature-controlled transportation at the right level was not provided.  Liability was not negatived by the exclusions.

Wealmoor Ltd v KLM Cia Real Holandesa De Aviacion and another [2025] EWHC 1706 (Comm), 11 July 2025