In the case of Glencore Agriculture BV v Conqueror Holdings Limited  the high court had to determine whether a notice of arbitration sent by Conqueror was validly served on Glencore, by being sent to an individual employee’s email address.
A dispute had arisen between the parties and Conqueror had issued correspondence to an employee of Glencore, Mr Oosterman to identify the sum it believed it was due and inviting him to agree to the appointment of a sole arbitrator.
There was no response from Mr Oosterman, but Conqueror continued to send email updates to him regarding the progression of the arbitration.
The arbitrator gave its final award in the sum of US$43,176.27 plus costs, a copy of which was sent to Glencore in the post. This was the first time it became aware of the proceedings because Mr Oosterman had not passed on the previous correspondence to company’s legal team.
Section 76 of the Arbitration Act 1996 provides that the parties are free to agree the manner of service of the arbitration notice but, failing that, the notice may be served "by any effective means", which includes email.
Glencore brought proceedings to set aside the final arbitration award, arguing that Mr Oosterman was a junior employee who was not authorised to accept service of any legal documents.
Conqueror argued that the notice of arbitration had been served properly, as Mr Oosterman was the individual that had been dealing with the matter when the dispute arose.
There is a distinction to be made between sending an email to a personal business email address and a generic business email address, such as firstname.lastname@example.org. If this email address is on a company’s website, then the “sender can reasonably expect the person who opens the email to be authorised internally to deal with its contents if the subject matter.”
If an email is sent to a personal email address of an employee, “the company can be expected to ensure that the letter or email is opened by someone with internal responsibility for putting it in the hands of whoever needs to deal with it on behalf of the company, and if he or she fails to do so, that risk falls on the company.”
It is important therefore to consider the individual’s role within the organisation and in particular if the individual has authority to accept service.
Mr Oosterman was not expressly authorised to accept service of arbitral proceedings, nor could it be established from evidence that he had implied authority.
The service of the notice of arbitration was not valid.
The parties to a contract should make it expressly clear what method of service is acceptable, which individuals are authorised to accept service, and provide their postal address or email address.
This case also highlights to importance of ensuring staff are appropriately trained to deal with receipt of legal documents and monitoring of generic email addresses and other methods of receiving correspondence.