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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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Wednesday, 17 September 14
SHIPPING MARKET INSIGHT - GEORGE LAZARIDIS
Since the onslaught of 2013 the rising tide of asset prices had been primarily driven by the increasing freight market conditions and the improving ...
Tuesday, 16 September 14
INDONESIAN GOVERNMENT DECLARED HBA SUFFERED ANOTHER SETBACK IN SEPTEMBER
COALspot.com - The Ministry of Energy & Mineral Resources of Indonesia revised down the coal bench mark price once again in September. HBA for ...
Tuesday, 16 September 14
INDONESIAN COAL OUTPUT WON'T EXCEED 421M TONS: GOVT - JP
The government is optimistic that it will meet its coal production target for this year, which caps nationwide production at a flat number compared ...
Monday, 15 September 14
CHINA'S COAL PROPOSALS LEAVE SOME HOPE FOR EXPORTERS - DAILY NEWS
When the best thing you can say about new policies is that they aren’t as bad as they could have been, then you know your industry is in deep ...
Monday, 15 September 14
SUB-BIT FOB INDONESIA COAL SWAP, JANUARY 2015 DELIVERY GAINED DAY ON DAY AND WEEK ON WEEK
COALspot.com: Indonesian coal swaps for average October 2014 increased US$ 0.40 (+0.78%) day on day and US$ 0.55 (+1.08%) per mt week on week. The ...
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- Port Waratah Coal Services - Australia
- Mjunction Services Limited - India
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- PowerSource Philippines DevCo
- Pendopo Energi Batubara - Indonesia
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- Orica Australia Pty. Ltd.
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- Standard Chartered Bank - UAE
- Indogreen Group - Indonesia
- Sakthi Sugars Limited - India
- Global Business Power Corporation, Philippines
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- Bukit Makmur.PT - Indonesia
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- Economic Council, Georgia
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- Ministry of Finance - Indonesia
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- Orica Mining Services - Indonesia
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- Essar Steel Hazira Ltd - India
- Metalloyd Limited - United Kingdom
- Edison Trading Spa - Italy
- Banpu Public Company Limited - Thailand
- Maharashtra Electricity Regulatory Commission - India
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- Wilmar Investment Holdings
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- Indian Energy Exchange, India
- Lanco Infratech Ltd - India
- Therma Luzon, Inc, Philippines
- The University of Queensland
- Commonwealth Bank - Australia
- Borneo Indobara - Indonesia
- Bhoruka Overseas - Indonesia
- TeaM Sual Corporation - Philippines
- GVK Power & Infra Limited - India
- Sical Logistics Limited - India
- Electricity Generating Authority of Thailand
- Straits Asia Resources Limited - Singapore
- Eastern Coal Council - USA
- Directorate Of Revenue Intelligence - India
- Videocon Industries ltd - India
- London Commodity Brokers - England
- Coalindo Energy - Indonesia
- Dalmia Cement Bharat India
- Parry Sugars Refinery, India
- Cigading International Bulk Terminal - Indonesia
- Intertek Mineral Services - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Kobexindo Tractors - Indoneisa
- Aditya Birla Group - India
- Sree Jayajothi Cements Limited - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Price Waterhouse Coopers - Russia
- CIMB Investment Bank - Malaysia
- MS Steel International - UAE
- Global Coal Blending Company Limited - Australia
- Ministry of Transport, Egypt
- Kohat Cement Company Ltd. - Pakistan
- Miang Besar Coal Terminal - Indonesia
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- Tata Chemicals Ltd - India
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- Pipit Mutiara Jaya. PT, Indonesia
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- Gujarat Electricity Regulatory Commission - India
- Romanian Commodities Exchange
- Goldman Sachs - Singapore
- Ministry of Mines - Canada
- Bangladesh Power Developement Board
- Siam City Cement - Thailand
- Rio Tinto Coal - Australia
- Indo Tambangraya Megah - Indonesia
- Bharathi Cement Corporation - India
- Indian Oil Corporation Limited
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- Semirara Mining and Power Corporation, Philippines
- Savvy Resources Ltd - HongKong
- Bahari Cakrawala Sebuku - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Meenaskhi Energy Private Limited - India
- Malabar Cements Ltd - India
- Coal and Oil Company - UAE
- IHS Mccloskey Coal Group - USA
- Ambuja Cements Ltd - India
- Australian Commodity Traders Exchange
- Indika Energy - Indonesia
- Formosa Plastics Group - Taiwan
- Parliament of New Zealand
- LBH Netherlands Bv - Netherlands
- Cement Manufacturers Association - India
- Thai Mozambique Logistica
- Global Green Power PLC Corporation, Philippines
- Australian Coal Association
- Interocean Group of Companies - India
- Sarangani Energy Corporation, Philippines
- Jindal Steel & Power Ltd - India
- IEA Clean Coal Centre - UK
- Kepco SPC Power Corporation, Philippines
- ICICI Bank Limited - India
- Larsen & Toubro Limited - India
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- Marubeni Corporation - India
- GMR Energy Limited - India
- Sindya Power Generating Company Private Ltd
- Asia Pacific Energy Resources Ventures Inc, Philippines
- GAC Shipping (India) Pvt Ltd
- Trasteel International SA, Italy
- Planning Commission, India
- Power Finance Corporation Ltd., India
- Aboitiz Power Corporation - Philippines
- Africa Commodities Group - South Africa
- Globalindo Alam Lestari - Indonesia
- Bukit Baiduri Energy - Indonesia
- Agrawal Coal Company - India
- Binh Thuan Hamico - Vietnam
- McConnell Dowell - Australia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Manunggal Multi Energi - Indonesia
- Semirara Mining Corp, Philippines
- San Jose City I Power Corp, Philippines
- Thiess Contractors Indonesia
- Meralco Power Generation, Philippines
- Kartika Selabumi Mining - Indonesia
- Gujarat Sidhee Cement - India
- Salva Resources Pvt Ltd - India
- ASAPP Information Group - India
- Uttam Galva Steels Limited - India
- Jaiprakash Power Ventures ltd
- Star Paper Mills Limited - India
- Maheswari Brothers Coal Limited - India
- Georgia Ports Authority, United States
- Samtan Co., Ltd - South Korea
- Central Java Power - Indonesia
- Minerals Council of Australia
- Attock Cement Pakistan Limited
- Baramulti Group, Indonesia
- Chamber of Mines of South Africa
- Truba Alam Manunggal Engineering.Tbk - Indonesia
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- South Luzon Thermal Energy Corporation
- Antam Resourcindo - Indonesia
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