The Devil Is In The (Service) Details: Evasive Respondents And The 2014 LCIA Arbitration Rules

Service of proceedings should be simple and straightforward. But what happens when you are faced with an evasive Respondent? In those cases, service rapidly becomes one of the most frustrating (and sometimes costly) aspects and your proceedings have yet to begin! When you add the current pandemic to the mix, it is not surprising that case reports about challenges to jurisdiction and default judgments have been on the rise.

In an ideal world under the 2014 LCIA Arbitration Rules, the parties would: (i) agree service by electronic means and designate relevant email addresses; or (ii) agree a physical address for the purposes of receiving communication in regard to the arbitration agreement. Alternatively, the parties would at least be able to point to a specific address regularly used in their previous dealings where written communications relating to the arbitration can then be delivered. However, delivery of written communications to the other side and, in particular, the Request for Arbitration can be a feat of its own if none of the above apply. The challenge can be even greater if the Respondent refuses to engage with the process and there is limited or no information about the Respondent’s registered address or principal office, or its directors’ principal residences so that it is not possible to rely on the safety nets provided by section 76 of the Arbitration Act 1996.

In this article, Jenny Lau and Mariya Lazarova share some practical tips to deal with service of a Request for Arbitration on evasive Respondents.

Prepare, investigate and keep records

• In the absence of contractual or otherwise agreed notice procedures and cooperation from the Respondent, it is important to investigate from an early stage the Respondent’s location, registered address or place of business, as well the whereabouts and contact details of its directors. The Respondent is likely to be more forthcoming with such information during any negotiation process and less so if discussions break down!
• Diligent internal record keeping is advised in order to be able to address any future challenges that may be raised.
• During a time crunch, even the most obvious details (or addresses!) might go undetected. Therefore, it is important to verify and double-check the sources of information as well as the accuracy of the information itself.

Explore all physical and electronic options

• It might be tempting to dispatch the papers to one address only, but if in doubt, dispatch not only to the registered address, but also to the last known address and the address of any known authorized agents[1].
• If all else fails and finding and delivering to the correct address or persons is not possible, service can still be effected if the Claimant can show that it has notified key executives of the Respondent of the Request for Arbitration. Drawing executive attention to the delivery of papers is therefore essential via all possible means, and the Claimant should make sure that it obtains evidence of the steps it has taken to do so.

Stay on top of the logistics

• When dealing with evasive Respondents the logistics of effecting delivery are no less important than the strategical planning and legal justification of the method adopted and address(es) used.
• Again, the Claimant should obtain proofs of delivery, tracking reports and keep notes of all communications with any courier service provider. In our experience, sometimes the smallest and seemingly mechanical steps can play a decisive role in questions related to effective service and/or notification.
• From a strategic management perspective, care should be taken to keep sight of all the moving parts of the puzzle especially if delivery is to be attempted on multiply entities / persons at multiple addresses.

Finally, be ready for surprises along the way! We have seen the discovery of new addresses after delivery has already been attempted, papers have been refused upon delivery and in one instance, the occupants of the Respondent’s registered address claimed to have never heard of the Respondent at all.

Although the above might be a matter of common sense, the risk of an eventual challenge to the arbitration award for lack of effective notification or jurisdiction makes going back to basics well worth the trip!

*This article is not intended to give any legal advice or to give rise to client-solicitor relationship. It has been preparation for information purposes only. If you require legal assistance in the field of arbitration and/or litigation, please contact iLaw’s Head of Arbitration, Jenny Lau at  jenny.lau@ilaw.co.uk

[1] The decisions in Sino Channel Asia Ltd v Dana Shipping and Trading PTE Singapore & Anor [2016] EWHC 1118 (Comm) (20 May 2016) and Glencore Agriculture B.V. (formerly Glencore Grain B.V.) v Conqueror Holding Ltd [2017] EWHC 2893 (Comm) are useful reminders about the pitfalls of service on unauthorised persons and the use of improper email addresses.

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