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Missing the time limit to start GAFTA or FOSFA arbitration means risking your entire claim — even when you are plainly right on the merits. These deadlines are short, they are applied strictly, and counting on the arbitrators to show leniency usually does not pay off. Below, I set out how much time you have, what you actually need to do within it, and what options remain if it has already passed.
A time limit to arbitrate is not the “limitation period”
A common and costly misconception: since English law gives six years to bring a contract claim under the Limitation Act 1980, there must be time to spare. In GAFTA and FOSFA arbitration that is not how it works. Two clocks run at once — and the decisive one is not the clock most people watch.
The six years under the Limitation Act 1980 are an outer, statutory backstop. But the GAFTA or FOSFA contract itself, through its arbitration rules, imposes a separate and much shorter contractual time bar. That bar expires first — long before the six years. Miss it, and the claim is barred: FOSFA calls this “waived and absolutely barred”, GAFTA “waived and barred”, but the effect is the same — the merits are not heard. The six-year Limitation Act period is almost never your real deadline in trade-association arbitration.
The contractual time limit is simple in principle, but there is a subtlety that trips people up. Within the time allowed you do not have to “file a claim” in the usual sense — you have to do something narrower: serve the other party with a notice of arbitration and appoint your arbitrator (in FOSFA a copy of the notice, with the arbitrator’s name, also goes to the Federation; in GAFTA the notice is served on the respondent). The full written case and evidence (the submissions) come later, under their own deadlines. But if the notice itself is not served in time, the merits will not be heard at all — however strong they may be.
How long do you have to start FOSFA arbitration?
This is part of the wider machinery of FOSFA arbitration: under Rule 1 of the Rules of Arbitration and Appeal (version effective from 1 April 2026) the period depends on the type of claim. Quality and/or condition claims must be brought within 90 consecutive days of completion of discharge on CIF, CIFFO, C&F and similar terms, or of completion of delivery on FOB, ex-tank, ex-mill and ex-store terms. Where a sample may be a determinant of the outcome, the claimant also sends a sealed sample to FOSFA — but that applies only where the sample carries evidential weight, not in every quality dispute.
All other claims — including money claims such as price, brokerage commission and damages — must be brought within one year. And here is the key detail: the year runs not from the vague “date the dispute arose” but from an objective contractual date — expiry of the shipment period or completion of final discharge (CIF), expiry of the delivery period or delivery of the goods (FOB). The respondent, on receiving the notice, appoints its arbitrator within 30 days.
A few practical points from the same Rule 1: a notice of arbitration sent by a broker is valid; any notice received after 16:00 on a business day is treated as received on the next business day; and if the deadline falls on a Saturday, Sunday or public holiday, it is extended to the next business day.
How long do you have to start GAFTA arbitration?
The logic of GAFTA arbitration is similar, but under Rule 2 of GAFTA No 125 (version effective from October 2025) the trigger dates differ. Where the arbitrators are to examine samples, notice of intention to refer the dispute to arbitration must be served within 21 consecutive days of completion of loading, delivery, discharge or unstuffing (and only 10 days for disputes under the Rye Terms clause).
All other sale-of-goods disputes must be brought within one year, but the starting point depends on the term:
- CIF, C&F and similar: one year from the later of the two dates — expiry of the contract delivery period (including any extension) or completion of final discharge of the ship at the destination port.
- FOB: one year from the earlier of the two dates — the date of the last bill of lading or expiry of the contract period for presentation of the vessel.
- Other terms: one year from the last day of the contractual delivery, collection or arrival period.
The different trigger for FOB and CIF (“earlier” versus “later”) is a classic source of miscalculation. Confuse the two and you may think there is still time when the deadline has, in fact, already passed.
What is “renewal” of a claim and why does it matter?
There is a second, less obvious problem tied to time, and it is the one most often forgotten. Suppose you started arbitration in time. If the case then stalls and nobody moves it forward, the claim can be lost all over again — not at the outset, but mid-stream.
Under Rule 3 of FOSFA, if neither party puts any documents or submissions before the arbitrators within one year of the date of claim, the claim is deemed to have lapsed. The only rescue is renewal: at any time before that year expires, either party serves the other with a fresh notice of arbitration. In FOSFA this renewal is available once only — it extends the case for one year from the date the renewal notice is given (rather than adding a year to the original deadline), after which, if nothing has happened, the claim is deemed withdrawn and abandoned (more on this and the other recent changes in the analysis of the FOSFA Rules of Arbitration 2026).
GAFTA, in Rule 4.10, is more generous in duration: a stalled claim can be renewed repeatedly, year after year, but no longer than six years from the date of the first notice (the same ceiling as in the Limitation Act 1980). But it is fussier in form: renewal is either by serving documents or submissions, or by a separate notice — and that notice is valid only if served within the 30 days before the expiry date. FOSFA has no such window: there, renewing simply requires notifying the other party at any time before the year runs out. Any counterclaim is renewed together with the main claim.
With renewal — as with starting the arbitration itself — it is best not to leave things to the last day. In FOSFA, for example, a notice received after 16:00 counts as received only on the next business day: send it late on the deadline day and you can technically be out of time. GAFTA is gentler here — the date of dispatch of the notice counts as the date of service (Rule 21.1) — but proving you were in time at the last minute is always harder than doing it early.
Can the arbitrators forgive a missed deadline?
Formally, yes — both FOSFA and GAFTA give the tribunal an “absolute discretion” to admit a late claim. But it is not something to count on, and here is why.
First, the discretion is engaged only if the respondent actually raises the missed deadline as a defence. FOSFA says so expressly in Rule 11(a), GAFTA in Rules 2.3 and 23. If the respondent stays silent on the time bar, the bar is not applied — and the award cannot later be set aside on that ground.
Second, the threshold for “forgiveness” is deliberately high. GAFTA writes it straight into Rule 23(a): a late claim may be admitted only if the arbitrators are satisfied that “the circumstances were outside the reasonable contemplation of the parties when they entered into the contract and that it would be just to extend the time”, or that “the conduct of one party makes it unjust to hold the other party to the strict terms of the time limit”. FOSFA does not spell the test out in its rules, but tribunals apply the same formula. Arguments like “we didn’t know about the deadline”, “we were negotiating a settlement” or “this is our first arbitration” usually fail. The arbitrators’ discretion is not something to plan around.
Section 12 of the Arbitration Act 1996: can you ask the court to extend time?
If the tribunal or the board of appeal has refused, one option remains — to ask the English court to extend time under section 12 of the Arbitration Act 1996. The route exists, but it is rarely successful.
The statute confines the court tightly. Section 12(2) allows an application only after any available arbitral process for an extension has been exhausted. And section 12(3) permits an extension only on one of two conditions:
(a) that the circumstances are such as were outside the reasonable contemplation of the parties when they agreed the provision in question, and that it would be just to extend the time, or
(b) that the conduct of one party makes it unjust to hold the other party to the strict terms of the provision in question.
This test is deliberately stricter than its predecessor: under section 27 of the old Arbitration Act 1950 the court could extend time simply to avoid “undue hardship” to the claimant. That is no longer enough — genuinely exceptional circumstances are required.
How this works in practice is shown by the leading commodity case, SOS Corporación Alimentaria SA & Mataluni SpA v Inerco Trade SA [2010] EWHC 162 (Comm), decided by Hamblen J. The dispute grew out of the industry-wide contamination of Ukrainian sunflower oil with mineral oil in 2008. The contracts were on the FOSFA 54 form; the buyers missed the 21-day quality time limit. The first-tier FOSFA tribunal forgave the lateness, but the board of appeal reversed that and held the claim time-barred. The buyers then went to court — both under section 69 (appeal on a point of law) and under section 12 (extension of time).
The judge refused both. On section 12 he made a key — and not obvious — point. The court accepted that mineral-oil contamination was not a recognised industry risk at the time and that the parties could not reasonably have contemplated it. But that alone was not enough. Section 12 looks not so much at whether the contamination was foreseeable as at the circumstances that caused the time limit to be missed — and also at the length of the delay, the claimant’s fault and whether it would be just to extend time at all. And there the buyers were at fault themselves: on one claim the contamination was established 8 days before the deadline, yet they took no steps; on the others, they delayed commencing arbitration even after they knew of the problem. The judge dismissed the “we didn’t know the FOSFA time limits” argument particularly firmly: the buyer was a large international producer and distributor of vegetable oils, with a legal department actively involved in the contamination issue, and ought to have known that contractual time limits in trade-association sales are fundamental. Sophistication and legal representation counted against the applicant, not in its favour.
The judge’s main practical conclusion: section 12 does contemplate an extension even where the association has its own mechanism, but such cases “are likely to be rare” — the applicant must show that the case is out of the ordinary and that there is good reason to extend time despite the arbitrators’ own decision. For contractual demurrage time bars and section 12 in the charterparty context the logic is similar — see the article on the demurrage time bar.
A missed deadline in FOSFA arbitration: a case from practice
This is a case from my own practice: I acted for the seller (a trader) against whom a broker had brought a claim for unpaid commission, and I secured the dismissal of the claim in full on the missed time limit — without ever reaching the merits. The broker was claiming commission on several FOB contracts for Ukrainian crude sunflower oil. By that point the seller had a quality dispute with its own buyers and had not been paid the price in full, and against that background it refused to pay the brokerage, saying so plainly and unequivocally. The broker, for whom this was a first arbitration, was in no hurry: it tried to settle amicably, waited for promised calls “once we’ve checked with management” — and turned to FOSFA roughly two months after the deadline had already passed. A telling detail: FOSFA has separate rules of arbitration for brokerage commission, but in the signed confirmations the parties referred to the full rules under FOSFA contract No 53 — and it was those time limits that ultimately caught the broker out.
Under the rules then in force, a money claim had to be brought within 60 days of the dispute arising. The tribunal fixed the date of the dispute by reference to the seller’s clear refusal to pay; the 60 days expired; arbitration was commenced 62 days late. The broker asked the arbitrators to use their discretion and forgive the delay, pleading inexperience and ongoing settlement talks. Refused — on the same “reasonable contemplation” test: the parties had deliberately chosen to arbitrate under the FOSFA rules, so the time limits in those rules were squarely within their contemplation; ignorance of rules the parties had chosen themselves is no excuse. The claim was dismissed in full, and the broker was ordered to pay the costs of the arbitration (on how those costs are allocated, see the piece on recovering legal costs in GAFTA and FOSFA arbitration). A commission that may well have been earned was lost not because the position was weak, but because the time had run out — and that is the whole lesson.
Two things have changed since. That case ran under the old regime: two arbitrators and, where they disagreed, an appointed “umpire”, plus a tight 60-day window for money claims tied to the slippery “date the dispute arose”. Today FOSFA disputes are decided by a tribunal of three arbitrators with a chair — the umpire is gone — and money and other claims have a full year, measured from a fixed contractual date. The same broker would very probably have been in time under today’s rules. The procedure is now less harsh — but the lesson has not changed: the discretion to forgive a missed deadline exists, the arbitrators apply it rarely, and you cannot build your plan on it.
What this means for traders and brokers
Treat your real deadline as the short contractual time limit in the arbitration rules — not the six years of the Limitation Act — and calendar it from the objective contractual date (end of the delivery period, the bill of lading date, completion of discharge), not from the day “the dispute began”.
Start arbitration in good time even if you are negotiating a settlement in parallel: negotiations do not stop the clock, and a case formally commenced can always be discontinued if you reach agreement. If the arbitration is already running, keep the second deadline — for renewal — in view too, so the claim does not lapse.
And if the deadline has been missed, it is not necessarily the end: whether the respondent pleads the time bar, whether there are grounds for the discretion, whether the internal mechanism has been exhausted before going to court — all of this is worth a clear-headed analysis. But treat it as damage control, not as a plan.
If you have a dispute under a GAFTA or FOSFA contract, or you urgently need to assess whether the time limit for starting arbitration is about to expire, get in touch:
