Appeals and Challenges from FOSFA Awards to the High Court after Arbitration Act 2025

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Introduction

FOSFA arbitration sits in a narrower and more technical corner of English commercial dispute resolution than many generalist practitioners appreciate. It is shaped by the needs of the oils, seeds and fats trade, by standard forms, and by specialist arbitral rules that have evolved around that market. One feature of the system is its internal appellate structure. A dispute begins before a first-tier tribunal and may then go, where the rules allow, to a FOSFA Board of Appeal. That internal appeal is part of the arbitral machinery. It is not the same thing as an appeal to the court.

That distinction matters because English law does not give disappointed parties a broad merits appeal from FOSFA arbitration to the Commercial Court. Once a London-seated FOSFA award has been made, recourse to the court is confined to the routes expressly permitted by the Arbitration Act 1996. In practice, those are: a challenge to substantive jurisdiction under section 67; a challenge for serious irregularity under section 68; and, unless the parties have excluded it, an appeal on a point of English law under section 69. Section 70 then overlays all three routes with procedural conditions relating to exhaustion, time and related matters.

The reported FOSFA cases show the English courts doing two things at once. They continue to support the finality of specialist commodity arbitration, and they are reluctant to interfere merely because a party is dissatisfied with the outcome. But they will still intervene where the statute authorises it, and the conditions are satisfied. The position after 1 August 2025 also needs separate treatment. The Arbitration Act 2025 did not remove the familiar structure of sections 67, 68 and 69, but it did alter the architecture of jurisdictional challenges and clarify the timing regime in section 70.

What follows is an examination of the principal routes by which a FOSFA award may reach the High Court, the main principles and procedural requirements under each route, the authorities that matter most in the FOSFA setting, and the practical effect of the 2025 reforms.

The FOSFA structure and the court’s supervisory role

The two-tier structure of FOSFA arbitration is not merely an institutional curiosity. It has direct consequences for the court challenge regime. In many cases, the award that matters for High Court purposes will not be the first-tier award but the award of the FOSFA Board of Appeal. That engages section 70(2), because a party may not normally pursue a challenge or appeal under sections 67, 68 or 69 without first exhausting any available arbitral process of appeal or review and any available recourse under section 57.

The importance of that point can be seen in the authorities. In UR Power GmbH v Kuok Oils and Grains Pte Ltd [2009] EWHC 1940 (Comm), Gross J considered a series of applications under sections 67, 68 and 69 arising out of a FOSFA Board of Appeal award in a dispute about an alleged CIF contract for crude palm oil. The Board of Appeal award was treated as the operative award for the court applications, and the judgment also addressed the running of time under section 70(3). In JSC “Kazan Oil Plant” v Aves Trade DMCC [2025] EWHC 2713 (Comm), Bright J drew attention to the need to distinguish between a first-tier award that has itself been followed by an internal appeal and a Board of Appeal award for which there is no further arbitral review.

Just as important is the character of the court’s role. The Commercial Court is not a second specialist trade tribunal. It is not there to re-try the dispute, re-weigh factual material or substitute its own market judgment for that of FOSFA arbitrators. Section 1(c) of the 1996 Act states the underlying policy plainly: the court is not to intervene except as provided by the Act. That principle explains the strictness of section 68, the narrow permission regime under section 69, and the continuing insistence on keeping jurisdiction, procedural fairness and legal error analytically separate.

The three statutory routes

Section 67: lack of substantive jurisdiction

Section 67 is concerned with authority rather than correctness. The question is whether the tribunal had the power to determine the dispute or issue before it. Section 30 identifies the relevant components of substantive jurisdiction: whether a valid arbitration agreement existed, whether the tribunal was properly constituted, and whether the matter in dispute had been submitted to arbitration in accordance with that agreement. In the FOSFA setting, section 67 arguments usually arise in disputes about the incorporation of FOSFA terms, authority to contract, commencement of the reference, and the scope of the clause.

Section 68: serious irregularity

Section 68 serves a different purpose. It is directed at defects in the arbitral process, not ordinary errors on the merits. The applicant must show both a serious irregularity of a kind identified in section 68(2) and substantial injustice. In practical terms, that means a complaint that the tribunal failed to deal with an issue that mattered, denied a party a fair opportunity to address a point, exceeded its powers in the conduct of the proceedings, or otherwise breached its general duty under section 33.

Section 69: appeal on a point of law

Section 69 remains the only true appeal route, but it is tightly confined. Unless excluded by agreement, it permits an appeal on a question of English law arising out of the award, with the consent of all parties or the permission of the court. Permission is not easily obtained. The point must be a genuine point of law, it must have a real impact on the parties’ rights, it must be a question the tribunal was actually asked to determine, and the court must be satisfied that the decision is obviously wrong or, where the issue is of general public importance, at least open to serious doubt. It must also be just and proper for the court to entertain the appeal.

Section 67 in FOSFA cases

There are fewer reported FOSFA section 67 cases than one finds in some other arbitral contexts, but the existing authorities still provide a coherent picture.

The first and most obvious point is that the existence of a FOSFA arbitration agreement must be proved in the ordinary way. It is not enough to say that the trade commonly uses FOSFA forms and to assume that the arbitral clause follows automatically. The leading recent authority is Black Sea Commodities Ltd v Lemarc Agromond Pte Ltd [2021] EWHC 287 (Comm). The dispute arose out of negotiations for the sale of Ukrainian corn. The buyer argued that a FOSFA arbitration agreement had been incorporated either through later exchanges of draft terms or by reason of trade custom. Sir Michael Burton upheld the section 67 challenge. The court emphasised that the question was whether the parties had actually agreed to arbitrate, not merely whether a sale transaction may have been on foot, and that any alleged custom had to be shown to be binding and invariable rather than simply common in practice.

The second point is that a party cannot undo a concluded arbitration agreement by retrospectively re-describing a contractual step as a condition precedent to contract formation. UR Power is the key authority. The seller contended that because the buyer had not opened a transferable letter of credit, no binding contract had ever been formed, and therefore no arbitration agreement existed. Gross J rejected that analysis. On the evidence, the letter of credit obligation was not a contingent condition precedent to the making of the contract; it was much more naturally a promissory term within a contract that had already been concluded, with the proof-of-product certificate preceding the opening of the credit. The section 67 challenge, therefore, failed.

A third point concerns the effect of participation. In UR Power, the court did not have to decide definitively whether the seller’s failure to challenge jurisdiction before the first-tier tribunal would later have barred its jurisdiction complaint by virtue of sections 31 and 73, because the challenge failed on the substance. Even so, the case illustrates an important practical risk in FOSFA arbitration: a party that proceeds without raising a jurisdiction objection promptly may later find that the objection has been lost.

A fourth point comes from outside the FOSFA context but remains indispensable. In Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46, the Supreme Court made clear that where jurisdiction is genuinely disputed, the court decides for itself whether a binding arbitration agreement existed. Dallah was not a commodity case, but its reasoning underpins section 67 analysis in FOSFA as much as elsewhere.

A fifth procedural point is illustrated by A Ltd v B Ltd [2014] EWHC 1870 (Comm). Although the arbitration there was under ICA rules, Andrew Smith J held that a second-tier arbitral appeal mechanism constituted an available arbitral process of appeal or review for the purposes of section 70(2), even where the appellant denied ever having been party to the arbitration agreement. The reasoning is relevant to FOSFA because it reflects the general commodity-arbitration approach to exhaustion in two-tier systems.

Section 68 in FOSFA cases

The reported FOSFA material under section 68 is comparatively limited. That is not unusual. Serious irregularity challenges are deliberately narrow, and successfully reported examples in specialist trade arbitration are uncommon. The applicable principles are nevertheless clear.

The orthodox starting point remains Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43. The House of Lords made clear that section 68 is a safety valve for serious procedural failure, not a disguised appeal on fact or law. The same proposition governs challenges arising out of FOSFA awards.

Within the FOSFA authorities, UR Power is still the most useful direct example. Kuok argued that the Board of Appeal had committed a serious irregularity in the way it dealt with evidence and in the weight it gave to a point raised late about the date of termination. Gross J rejected the application outright. He held that there was no irregularity at all, still less one capable of causing substantial injustice. The value of UR Power in this area lies precisely in its failure: it demonstrates how high the threshold is and how resistant the courts are to attempts to turn disagreement with a board’s reasoning into a section 68 case.

A second instructive commodity decision, though it arose under GAFTA rather than FOSFA, is Al-Hadha Trading Co v Tradigrain SA [2002] 2 Lloyd’s Rep 512. There, the appellate body failed to give reasons for a corrective award. The court accepted that this was a serious irregularity under section 68(2)(h), because the parties were entitled to know why the discretion had been exercised in the way it had. The application nevertheless failed because no substantial injustice was shown. The decision is useful because it highlights the two-stage nature of section 68: procedural error alone will not do.

Where the FOSFA cases are sparse, broader section 68 authorities remain helpful markers. Royal Sun Alliance Insurance Ltd v Tughans [2022] EWHC 2589 (Comm) illustrates a case where a tribunal granted relief that the claimant had expressly disclaimed. Fleetwood Wanderers Ltd v AFC Fylde Ltd [2018] EWHC 3318 (Comm) shows procedural unfairness where material was considered without giving the parties the opportunity to answer it. Punch Partnerships (PTL) Ltd v Jonalt Ltd [2020] EWHC 1376 (Ch) demonstrates that even an issue about the burden of proof can engage section 68 if the tribunal adopts a determinative approach without warning the parties. These are not FOSFA cases, but the principles they illustrate apply equally in that environment.

Section 69 in FOSFA cases

The reported FOSFA cases are richer under section 69 than under section 68. They show both how specialist commodity issues reach the High Court and how jealously the court guards the boundaries of the point-of-law appeal.

UR Power is again a useful starting point. Both sides sought permission to appeal on alleged questions of law arising out of the FOSFA Board of Appeal award. Gross J refused permission. In his view, none of the proposed questions raised an issue of general public importance, and none of the challenged conclusions was obviously wrong. The judgment is significant because it reflects the deference that the court is willing to show to experienced commodity arbitrators where the supposed legal complaint is, in truth, a disagreement with the board’s commercial assessment.

The most important recent FOSFA section 69 authority is Allseeds Switzerland SA v Intergrain SA [2025] EWHC 2788 (Comm). The dispute concerned a CIF soybean contract under which the cargo arrived damaged, and the adequacy of the seller’s insurance arrangements was called into question because the relevant cover had been procured only after arrival and without proper disclosure of the known damage. The FOSFA tribunals found against the seller, and the matter then came before the High Court under section 69. Butcher J’s judgment is important not only for what it says about CIF insurance obligations, but also for its treatment of the permission stage. Once permission has been granted, the judge hearing the substantive appeal will not normally revisit each component of that permission decision unless the circumstances are genuinely exceptional.

Kazan Oil Plant v Aves Trade DMCC is now the key timing authority for section 69 in the FOSFA context. The first-tier tribunal ruled in favour of the buyer, the seller appealed internally, and the FOSFA Board of Appeal issued its award on one date but released it later after payment of fees. The claimant issued its section 69 challenge 43 days after the award date but within 28 days of receiving the document. Bright J held that the challenge was out of time. Because the application was directed to the Board of Appeal award itself, and no further arbitral appeal or review existed in relation to that award, time ran from the date of the award. The decision remains important even after the 2025 amendments, because it explains the structure of section 70 in a FOSFA two-tier scheme.

It is also helpful, though only at the level of general commodity-arbitration principle, to keep in view certain non-FOSFA Supreme Court authorities. Bunge SA v Nidera BV [2015] UKSC 43 was a GAFTA case, not a FOSFA case, but it remains an important authority on the appellate correction of legal error in standard-form commodity arbitration. The Supreme Court held that the common-law compensatory principle continued to apply and that the standard-form default clause did not operate as a complete code requiring substantial damages where subsequent events showed that the buyer had in truth suffered no loss. Its relevance here lies in the court’s treatment of specialist trade clauses on a section 69 appeal.

Sharp Corp Ltd v Viterra BV [2024] UKSC 14, again a GAFTA case, is equally important for the discipline of section 69 appeals. The Supreme Court stressed that the point of law must have been fairly and squarely before the arbitral tribunal and that the court cannot answer the appeal by making fresh factual findings or deciding a materially different question from the one argued below. That is as true of FOSFA appeals as it is of GAFTA appeals.

Section 70: exhaustion, timing and procedural discipline

In practice, section 70 is often the provision that determines whether a FOSFA challenge will even be heard. It is therefore not a procedural afterthought but part of the substantive architecture of recourse to the court.

The first recurring theme is exhaustion. Ordinarily, the applicant must first exhaust any available arbitral process of appeal or review and any available recourse under section 57. That matters acutely in commodity arbitration because association rules frequently create internal appeal structures. A Ltd v B establishes the broad proposition in this area, while Kazan Oil confirms that FOSFA appeals are, in principle, capable of falling within the statutory concept of an available arbitral process of appeal or review.

The second recurring theme is time. Before 1 August 2025, section 70(3) required a challenge under sections 67 to 69 to be brought within 28 days of the date of the award or, where there had been an arbitral process of appeal or review, within 28 days of notification of the result of that process. UR Power and Kazan Oil are the key FOSFA decisions on the operation of that provision. UR Power proceeded on the basis that, in a FOSFA two-tier scheme, the better view was that the time for challenging the Board of Appeal award ran from the date of that award. Kazan Oil later confirmed the point explicitly, where the challenge was directed to the Board of Appeal award itself.

The third recurring theme is preservation of objections. Sections 31 and 73 remain important where a party participates in FOSFA proceedings while disputing the existence of any arbitration agreement, the validity of the reference, or the tribunal’s authority over the dispute. UR Power again illustrates how these issues can arise even where the court ultimately resolves the challenge on other grounds.

The Arbitration Act 2025 and the post-1 August 2025 position

The Arbitration Act 2025 did not alter the basic three-route structure of sections 67, 68 and 69, but it made several changes that matter in practice.

First, section 69 was preserved. The Law Commission considered whether point-of-law appeals should be removed or materially curtailed and concluded that no substantive amendment was needed. For parties using FOSFA arbitration, the practical consequence is that the section 69 route remains available, subject, of course, to contractual exclusion and the existing high permission threshold.

Secondly, section 67 was materially recalibrated. The 2025 Act empowers the Civil Procedure Rules Committee to make rules restricting the grounds and evidence that may be advanced before the court where the tribunal has already ruled on the same jurisdiction objection. The evident aim is to move away from the older understanding of section 67 as a full rehearing and to align the jurisdiction challenge regime more closely with the more constrained logic of sections 68 and 69. For FOSFA users, that means jurisdiction strategy now needs to be addressed earlier and more carefully at the arbitral stage.

Thirdly, sections 32 and 67 are now more sharply separated. Following the amendment, the court must not entertain a section 32 application if the tribunal has already ruled on the same jurisdiction issue. The practical message is clear: parties are expected to choose between an early court ruling on jurisdiction and letting the tribunal decide first, in which case the subsequent route of recourse is section 67.

Fourthly, section 70 now expresses the timing rules more clearly through the concept of the ‘applicable date’. The amended language now makes explicit provision for arbitral appeals or reviews, material corrections and additional awards, and decisions refusing material section 57 applications. Even so, Kazan Oil remains valuable because it explains why, in the context of a FOSFA Board of Appeal award, the date of the award itself was already the correct starting point under the old wording, where no further arbitral review existed.

Practical conclusions

A party considering recourse from a FOSFA award to the High Court should begin by identifying the real nature of the complaint. If the point goes to whether there was ever a valid arbitration agreement, whether the arbitration was validly commenced, or whether the dispute fell within the clause, the natural route is section 67. If the point is one of procedural unfairness or failure to deal with a material issue, the route is section 68. If the complaint is a genuine question of English law arising from the award, the route is section 69.

The reported FOSFA authorities show that English law remains supportive of specialist commodity arbitration without becoming uncritical of it. UR Power shows the court refusing to interfere where the Board of Appeal’s conclusions fell within a permissible legal range. Black Sea shows that the court will insist on real proof of a FOSFA arbitration agreement and will not infer one casually from market expectations. Allseeds shows that a genuine point of commodity law can still justify section 69 scrutiny. Kazan Oil demonstrates that timing rules are strictly applied. The 2025 reforms add a further layer: jurisdiction objections and timing questions now require even more careful handling than before.

Taken together, the cases support a simple conclusion. Recourse from FOSFA awards to the High Court remains real, but it is controlled, structured and exacting. The parties who do best in this terrain are those who identify the correct statutory route early, preserve objections properly, and treat procedural discipline as part of the merits of the problem rather than as an afterthought.