AGA Partners successfully represented a Dubai trading company in a dispute with a Kazakhstan company resolved in arbitration. The dispute arose based on a contract for the supply of barley on the basis of the FOB ("Free On Board") amounting to a total value of almost USD2 million.
The seller was obliged to load the goods on a vessel in the port of Aktau, Kazakhstan, but was unable to deliver the goods to the port due to force majeure arisen from congestion of wagons at the railway caused by adverse weather conditions.
The key issue in the dispute was whether the circumstances in which the seller failed to perform the contract were force majeure under English law applicable to the contract.
The arbitrator did not qualify the circumstances the seller referred to as force majeure, since the seller was able to deliver the goods to the port by road.
In order for certain circumstances to be recognised as force majeure and release from the obligation to perform the contract, the party must prove the absence of an alternative way to fulfil its obligations. We demonstrated that the seller had the opportunity to deliver the goods by means of transport other than rail and perform the contract.
AGA Partners team secured full satisfaction of the client’s claims of over USD100,000.