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Specialists in Commercial Dispute Resolution
PHILIP NOYCE ASSOCIATES is an independent, private practice offering cost effective and pragmatic advice on commodity contracts and dispute resolution in agricultural commodities particularly those incorporating AIC, GAFTA and FOSFA terms.
PHILIP NOYCE ASSOCIATES is owned and managed by Philip Noyce who has over 23 years experience in the commodity trade after being employed by agricultural merchants and shippers in the UK.
The practice retains a personal touch which is much apart from the corporate world. Our approach means that we are always committed to a high level of quality service, adopting new strategy enabling us to adapt to modern pressures and demands within the sector. The practice was developed from the initial idea from Peter Brown.
Philip is a Fellow of the Chartered Institute of Arbitrators and has been awarded the Institute’s Advanced Certificate in Arbitration.
He is an accredited arbitrator and can act as sole arbitrator, chairman and a member of first tier tribunals and can sit as a member of an appeal board for AIC (Agricultural Industries Confederation), FOSFA International (Federation of Oils Seeds and Fats Associations) and GAFTA (Grain and Feed Trade Association). He is also an accredited arbitrator for contracts incorporating BSPB (British Society of Plant Breeders) and BTPA (British Trade Potato Association) terms.
Philip is a past chairman of the AIC Contracts Committee and sits on the current AIC Contracts Committee as well as the FOSFA Oilseeds Committee and the FOSFA Contracts Committee.
Philip Noyce has developed a set of arbitration rules designed for disputes where the cost of any claim is low (as a guide up to £10,000.00) and where both parties agree to them being used and Philip being appointed as a sole arbitrator. The Rules are listed under “Resolve A Dispute” and are available upon request but, in general, involve the submission of statements of case and defence on a time table with a legally binding award published 50 days from the commencement of arbitration.
“When will mankind be convinced and agree to settle their difficulties by arbitration?” Benjamin Franklin
We think that Mr Franklin was correct.
Arbitration is a formal, private and binding process where disputes are resolved by a final award made by one or more independent arbitrators.
The process of arbitration is a faster, simpler and less expensive alternative to litigation. The recent hike in court fees has thrown this particular argument into the ring for discussion again.
Many trade organisations such as AIC, GAFTA and FOSFA produce their own set or arbitration rules and by incorporating their terms into a contract there is an obligation to use that method of settling disputes.
Commodity traders, shippers, merchants, maltsters, compounders, millers in the UK and across the world often include an arbitration clause (or reference to an arbitration clause by reference, for example, GAFTA 125 Arbitration Rules), in their contracts which refers any dispute arising from that contract for determination by arbitration; that is a group of commercial people from the industry who have experience and knowledge and are, arguably, better versed to determine a commodity dispute rather than settlement through the courts.
Depending on the rules of the trade organisation there is generally an appeal procedure so a dissatisfied party can have a fresh hearing. There is limited appeal further than the appeal procedure.
An award of arbitration is enforceable through the courts and even when the losing counterparty is outside the EU, the award can be enforced through countries which have subscribed to the New York Convention 1958.
With arbitrators being able to use wider procedural powers and the parties being able to agree on the mandatory areas, cost effectiveness and timeliness, parties to a contract should consider a standard binding arbitration clause, or referral to terms and conditions which contain an arbitration clause, in their contracts which refers any dispute to arbitration.
The parties involved in a dispute must consent to arbitration which is normally through an pre-agreed arbitration clause contained in a contract or can even be by consent after a dispute has arisen. This means that parties who have not agreed to dispute resolution by arbitration can still agree that is the best method to be used and can still use rules such as those as the Simple Dispute Arbitration Rules contained in this website (simple arbitration rules) . In England and Wales, the Arbitration Act 1996 is the statute by which arbitrations are conducted but arbitral bodies such as AIC, GAFTA and FOSFA have their own rules which govern many parts of the arbitration procedure which allows, over time, rules to be modified by users of the system to bring them in line with trade practice.
in addition to arbitration and dispute resolution, we provide……………
In addition to the being appointed as an arbitrator or a case representative, we additionally provide consultancy services. These services are often retained by clients who use our expertise, in for example, drafting terms and conditions for their purchases and sales, or maybe studying documentary instructions or terms or contracts to ensure that any contractual position is not affirmed or waived.
We may also be instructed, and have been in past cases, by companies who wish to update their HACCP plans in accordance with trade assurance as well as providing pre-audit checks for accreditation audits, drafting terms and conditions for specific storage and marketing contracts for buyers of UK Milling Wheat and Malting Barley or feed goods.
Other scenarios can be related to the sale of goods and these include providing clients with advice over the rejection of imported wheat into the UK; providing farmer clients with advice and issuing a subsequent claim for damages in an AIC arbitration; the preparation of submissions for a UK agricultural merchant in an AIC arbitration; a contract dispute involving alleged imported GMO animal feed.
These are just a few of the cases where we have been involved with positive outcomes for our clients. We have also acted in the past as an expert witness both in AIC and GAFTA disputes and have been active in the drafting and the amendment of arbitration rules for arbitral institutions.
Among our clients are growers, traders, millers, maltsters, brewers, shippers, farmers cooperatives, land Agents, food and beverage manufacturers, insurance companies, storage facilities and lawyers.
We also offer cost effective, bespoke training packages for companies in the UK and across the EU on all types of contracts including those of AIC, GAFTA and FOSFA.
These can take an agreed format and be arranged for individuals with any type of experience; for those first entering into the agricultural commodity industry or those with more experience who might benefit from more of an understanding of, for example, Sale of Goods Act 1979 or bills of lading, shipping problems and how to prevent them, arbitration procedure and practice. We also cater for and can give training to arbitral institutions on arbitration procedure and the routine training of arbitrators.
We are able to tailor training sessions to your particular requirements taking into account cost, your requirements, time and experience of those being trained.
We can provide annual training on AIC contracts as recommended by AIC.
Philip is a regular speaker at the FOSFA Basic Course and the FOSFA Middle Manager’s Course.
One primary function of training is to update staff, who might consist of trading, forwarding and administration roles, on relevant contract terms (new, amended or in existence) case law and relevant trade practice that they regularly use. These updates can relate to recent case law for example the recent case in common law damages from Bunge SA v Nidera SA .
Ideally, all staff involved in trading and forwarding should show some training has been given on the principles which underlay any incorporated terms and conditions to show understanding of contract terms – in doing so may strengthen market position and will ensure that all staff operate from a position of strength in “knowing their stuff”.
When a dispute develops, it can be daunting.
It can be more daunting where a party, although knowing the nature of the dispute, does not have any experience of resolution, the procedure and the likely costs entailed.
The first piece of advice is to act early, allowing either party to mitigate, quantify and evaluate the strength of the claim and which procedure to apply. Telephone or email us via the “get in touch” page for an immediate response.
Our involvement is in the settlement of commercial disputes by Alternative Dispute Resolution (ADR) rather than by parties having to resort to law.
We can act as a trade representative to represent parties in the drafting, documentation and presentation of claim or response submissions in disputes involving these trade rules of arbitration and appeal. We can also act as arbitrator or appoint a mediator to resolve disputes.
We can advise on any contractual dispute and specifically under the rules of:-
GAFTA (Grain and Feed Trade Association)
FOSFA (Federation of Oils, Seeds and Fats Associations)
AIC (Agricultural Industries Confederation)
BPTA (British Potato Trade Association)
We regularly handle disputes from farmers, merchants, shippers in a wide range and differing variety.
Where a dispute of a small monetary value exists, we can be appointed as an impartial and independent sole arbitrator to determine the dispute and to publish a binding award.
Our rules for these types of arbitration can be found here.
Please email us for pricing structure for the claim involved; we will always try to ensure that the cost of the arbitration will not be disproportionate to the size of the claim.
PHILIP NOYCE ASSOCIATES SIMPLE DISPUTE ARBITRATION SCHEME
Although we would hope that the majority of contracts are performed successfully, there are circumstances that arise where parties are put in a position where they need to recoup losses as a result of that non performance by the other party. Examples of this may include cases such as allowances for quality, rejection of the goods, failure to supply goods of the contract specification through to failure to supply the goods sold in a default position.
In GAFTA, FOSFA and AIC contracts the situation is clear as there is an arbitration clause incorporated into the terms and conditions.
In cases where no arbitration clause is incorporated into the contract, the parties can agree to arbitration being the method of dispute resolution rather than resorting to court action.
The parties can both agree to arbitration even if other terms are incorporated. They can appoint Philip Noyce as a sole arbitrator under the Simple Arbitration Rules listed here. It is hoped that by keeping submissions and evidence to a minimum then the costs of the arbitration will not be disproportionate to the claim amount.
The party’s submissions will be exchanged on a short time period and can be by email and the result is a binding award containing short reasoning being available within 50 days from outset.
Some common questions are:-
What is the scheme?
The scheme is an easy and transparent way for resolving small cost disputes in the agricultural commodity world and has been developed in mind to have a fixed cost if the arbitration expenses to produce a legally bind award by sole arbitrator. Essentially, it can be used as a method for resolving disputes if both parties agree to it being used.
The decision of the arbitrator is legally binding and enforceable through the Courts.
There is no limit on the amount of the claim but parties should note that the arbitration rules are condensed in order to deal with low cost, simple disputes. If the arbitrator considers, even after the exchange of documents, that the case is too complicated or contains too many contentions to be a simple dispute then he reserves the right to charge an additional amount by notice to the parties.
Should I Use Representation?
If the dispute is complicated then it may make sense to employ someone, not necessarily a solicitor, to prepare submissions on your behalf but there is fundamentally nothing to stop a party preparing their own statement of case.
Is There An Oral Hearing?
It is said that everybody wants their day in court. To keep the cost to a minimum, an oral hearing will only be held where both parties request that one be held. A single party can request an oral hearing but this is at the absolute discretion of the arbitrator.
How Long Will It Take?
If the parties to the dispute deliver their submissions on time and there is no other element involved, for example, disclosure, then after an initial seven day period for the arbitrator to accept the appointments, the exchange of statement of cases should be completed within thee weeks. After the closure of exchanges, an award is generally available within 21 days. The target for an award being published is 50 days after receipt of the arbitration agreement signed by both parties.
Philip Noyce Associates Simple Dispute Arbitration Rules (effective 7 April 2016).
These Rules apply to the Philip Noyce Associates Simple Arbitration Scheme
The object of the scheme is to provide a final and legally binding decision in the form of an award 50 days of the parties signing and returning the arbitration agreement. This is defined as when arbitration is commenced. The award is final and binding on the parties and there is no appeal procedure. If the arbitrator considers, even after the exchange of documents, that the case is too complicated or contains too many contentions to be a simple dispute then he reserves the right to charge an additional amount and will give such notice to the parties.
The arbitrator shall not be interested in the transaction directly or shall not be retained financially by any party to the arbitration.
The arbitration agreement form is available on request and must be completed by both parties who shall additionally provide a short outline of the dispute.
The Claimant, no later than 7 days, after the arbitration agreement has been signed and returned, shall make a deposit payment of £250.00 to the arbitrator.
The fixed fee for a dispute under these rules is £500.00 plus VAT at the applicable rate. If a hearing is granted then the arbitrator’s fee will be £150.00 per hour to include, but not limited to, the hearing time, and any travelling time, preparation time and disbursements. An additional deposit, at the arbitrator’s first request, shall be paid in the event of a hearing being provided. Any cancelled oral hearing will be charged at a daily rate.
The arbitrator shall issue a timetable at the time of accepting the appointment. The suggested timetable is that the Claimant serves their statement of case within seven days of the arbitrator’s acceptance. The Respondent’s statement of defence shall be submitted within seven days of the Claimant’s Statement of Case. The Claimant shall have a further seven days to serve their rejoinder which shall answer only new points raised by the Respondent. Following that, it will be the arbitrator’s intention to close exchanges and determine the matter. All notices and submissions shall be simultaneously copied to the other party and the arbitrator. Notices and documents can be submitted be email but it is recommended that a tracked and signed postal or courier service is used.
An oral hearing will only be held where both parties request that one be held. A single party can request an oral hearing but this is at the absolute discretion of the arbitrator. An additional deposit, at the arbitrator’s first request, shall be paid in the event of a hearing being provided. There shall be no representation at an oral hearing unless by the agreement of the parties.
It is for the Arbitrator to decide if a party can recover any costs of the arbitration from the other party including legal and/or representation costs.
When the award is ready for publication, the arbitrator will contact the parties and the award shall be released to both parties upon payment of the final amount due.
The Arbitration Act 1996 or any amendments or alternative substitute legislation shall apply to the arbitration and the Arbitrator shall have all the powers available to an Arbitrator under that Act. English law applies.
If the parties settle their dispute after commencing Arbitration, they must inform the Arbitrator immediately who will return any deposit to the Claimant which has not been used or inform the parties of any additional amount which is due to which the parties are jointly and severally liable.
These rules and the fixed fee may be revised from time to time. Any changes will not affect arbitrations already commenced unless the parties agree to apply them.
Philip Noyce Associates Simple Dispute Arbitration Rules 2016 ©