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Friday, 22 August 14
ARBITRATION CLAUSE IN LOU HELD TO REPLACE CHARTERPARTY ARBITRATION CLAUSE
 KNOWLEDGE TO ELEVATE
The Claimants had claims for cargo damage against the vessel Owners arising under four bills of lading. The vessel was the subject of a chain of three charterparties. The head and sub-charter provided for London Arbitration (two arbitrators unless a sole could be agreed), and the LMAA Small Claims Procedure for claims under US$100,000. The sub-sub-charter provided for Singapore Arbitration.
Owners’ P&I Club provided an LOU to the Claimants as security for their claims. The LOU provided for London Arbitration before a three-man Tribunal, stating in part: “we confirm that the Ship Owners agree that the above mentioned claims shall be subject to London Arbitration … and English Law to apply … and for each party to nominate its own arbitrator and the two so appointed may appoint a third”.
The Claimants commenced arbitration under the terms of the LOU, and Owners challenged the Tribunal’s jurisdiction. Owners argued that the arbitration clause in the head charter was incorporated into the bills of lading and that this remained intact, despite the provisions of the LOU. This included the use of the Small Claims Procedure. Owners said that the appointed Tribunal had no jurisdiction over claims which would inevitably be less than US$100,000.
The Court held that the arbitration provision in the LOU replaced the charterparty arbitration clauses. The Claimants had validly commenced arbitration and the Tribunal as appointed had jurisdiction.
The key question was whether the parties had intended the provisions of the LOU to replace the original arbitration provisions wholesale, or merely to vary them in limited respects but leaving them in force. The arbitration clause in the LOU was comprehensive and able to operate as a free standing agreement. Further, there was no reason in principle why the terms of the LOU should not operate as a complete replacement.
The Court identified “compelling reasons” supporting the parties’ intention that this should be the outcome. A particular focus was placed on certainty. Having an arbitration agreement located partly in an LOU and partly in a charterparty would be a “recipe for confusion”, especially where, as here, there was scope for disagreement as to which of the charterparty arbitration clauses would apply. The possibility of such disagreement was removed by the LOU.
This case highlights the importance of considering carefully whether the provisions of any binding documents, such as LOUs, will vary or even supersede the provisions of existing contracts. The court will consider all such documents in context, and in the light of common business sense. The parties’ intentions do not have to be explicitly set down in documents or correspondence for the court to make findings, in light of all the circumstances, as to what those intentions were.
Finally, it is interesting to note the Court’s comments, at the beginning of the judgment that it is difficult to see that the parties’ costs were well spent, where the amounts in dispute were modest and there was no dispute that the claims ought to be arbitrated. The Court noted that, in fact, Owners appeared to be seeking to knock out the claims on a technical point, because any new arbitration would be time barred, albeit it accepted that this was something which Owners were entitled to do.
Source: Reed Smith
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Tuesday, 07 October 14
API 8 CFR SOUTH CHINA COAL SWAP HEADED SOUTH
COALspot.com: API 8 CFR South China Coal swap for delivery in November 2014 decreased US$ 1.10 (-1.64%) month over month and US$ 0.25 (-0.38%) ...
Monday, 06 October 14
' COAL-BY-WIRE' FROM SUMATRA TO JAVA - THE JAKARTA POST
Coal from the island of Sumatra accounts for most of Indonesia’s low-grade lignite, a low-quality coal that receives a poor price in internat ...
Monday, 06 October 14
THE IRON ORE SHIPPING BUSINESS IS FACING SOME ROUGH SEAS - EAST ASIA FORUM
The impact of Chinese demand on global iron ore prices is well known. A less acknowledged consequence of China’s emergence is the transformat ...
Sunday, 05 October 14
BALTIC DRY INDEX SLIPS 1.14%; BALTIC PANAMAX INDEX GAINED 9.91% WEEK ON WEEK
COALspot.com: The BDI was down by 1.14 pct and closed at 1037 points this Friday.
The Cape index was down significantly week on week or lost 5 ...
Friday, 03 October 14
U.S. WEEKLY COAL PRODUCTION UP 5.8% TO 19.9 MMST
COALspot.com – United States the world's one of largest coal producers, produced approximately 19.9 million short tons (mmst) of co ...
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- Karaikal Port Pvt Ltd - India
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- Mintek Dendrill Indonesia
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- McConnell Dowell - Australia
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- Chamber of Mines of South Africa
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- Ministry of Transport, Egypt
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- Economic Council, Georgia
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- Asmin Koalindo Tuhup - Indonesia
- Standard Chartered Bank - UAE
- Siam City Cement PLC, Thailand
- Sojitz Corporation - Japan
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- Kapuas Tunggal Persada - Indonesia
- ASAPP Information Group - India
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- PowerSource Philippines DevCo
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- TeaM Sual Corporation - Philippines
- Rashtriya Ispat Nigam Limited - India
- Oldendorff Carriers - Singapore
- Petron Corporation, Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
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- Indo Tambangraya Megah - Indonesia
- VISA Power Limited - India
- Madhucon Powers Ltd - India
- Coalindo Energy - Indonesia
- Sarangani Energy Corporation, Philippines
- Grasim Industreis Ltd - India
- Indonesian Coal Mining Association
- Ministry of Finance - Indonesia
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- Electricity Authority, New Zealand
- Carbofer General Trading SA - India
- Bayan Resources Tbk. - Indonesia
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- Planning Commission, India
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- IHS Mccloskey Coal Group - USA
- Singapore Mercantile Exchange
- Orica Mining Services - Indonesia
- Ambuja Cements Ltd - India
- Bhoruka Overseas - Indonesia
- Africa Commodities Group - South Africa
- Straits Asia Resources Limited - Singapore
- Australian Commodity Traders Exchange
- Vijayanagar Sugar Pvt Ltd - India
- Interocean Group of Companies - India
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- Mjunction Services Limited - India
- Jorong Barutama Greston.PT - Indonesia
- Electricity Generating Authority of Thailand
- Minerals Council of Australia
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- Mercator Lines Limited - India
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- Manunggal Multi Energi - Indonesia
- Australian Coal Association
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- Global Coal Blending Company Limited - Australia
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- Gujarat Sidhee Cement - India
- The State Trading Corporation of India Ltd
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- Goldman Sachs - Singapore
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Port Waratah Coal Services - Australia
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- Binh Thuan Hamico - Vietnam
- Thiess Contractors Indonesia
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- Energy Development Corp, Philippines
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- South Luzon Thermal Energy Corporation
- Karbindo Abesyapradhi - Indoneisa
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- Altura Mining Limited, Indonesia
- New Zealand Coal & Carbon
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- Videocon Industries ltd - India
- AsiaOL BioFuels Corp., Philippines
- Ceylon Electricity Board - Sri Lanka
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Power Finance Corporation Ltd., India
- Iligan Light & Power Inc, Philippines
- PTC India Limited - India
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- Attock Cement Pakistan Limited
- Antam Resourcindo - Indonesia
- Semirara Mining Corp, Philippines
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