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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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Sunday, 07 September 14
FREIGHT MARKET CONTINUED TO BE FIRM IN SPITE OF CAPE'S THIS WEEK'S WEAK PERFORMANCE
COALspot.com: BDI up by 0.7 pct week on week and closed at 1155 points this week. The Baltic Dry Index is a composite of three sub-indexes that mea ...
Sunday, 07 September 14
SHIPMANAGERS SUPERVISION CONTRACT FOR NEWBUILDS - BIMCO
Shipmanagers are frequently called upon by their owner clients to supervise newbuilding projects on their behalf. The scope of the manager’s ...
Saturday, 06 September 14
SLOW COAL EXPORT REGISTRATION RAISES CONCERNS - THE JAKARTA POST
Several coal mining companies have yet to receive the go-ahead from the Energy and Mineral Resources Ministry to obtain exporting licenses, leading ...
Saturday, 06 September 14
DRY BULK MARKET'S PROSPECTS ARE IMPROVING, DESPITE WEAK SECOND QUARTER - NIKOS ROUSSANOGLOU, HELLENIC SHIPPING NEWS
The dry bulk market has been rebounding during the past month, with the Baltic Dry Index (BDI) ended the week on a high note, reaching 1,155 points ...
Saturday, 06 September 14
INDONESIA WANTS TO REGULATE COAL DEALS - THE TELEGRAPH INDIA
Indonesia has raised concerns about suspected coal deals struck between overseas buyers and its unregistered domestic miners, the telegraph India r ...
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- Kaltim Prima Coal - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Baramulti Group, Indonesia
- Latin American Coal - Colombia
- Riau Bara Harum - Indonesia
- San Jose City I Power Corp, Philippines
- Bayan Resources Tbk. - Indonesia
- Electricity Authority, New Zealand
- Indika Energy - Indonesia
- Grasim Industreis Ltd - India
- Posco Energy - South Korea
- Madhucon Powers Ltd - India
- Indogreen Group - Indonesia
- Directorate Of Revenue Intelligence - India
- Karbindo Abesyapradhi - Indoneisa
- Petron Corporation, Philippines
- Commonwealth Bank - Australia
- Energy Development Corp, Philippines
- Bukit Asam (Persero) Tbk - Indonesia
- Makarim & Taira - Indonesia
- Georgia Ports Authority, United States
- Jindal Steel & Power Ltd - India
- Pendopo Energi Batubara - Indonesia
- CIMB Investment Bank - Malaysia
- Simpson Spence & Young - Indonesia
- Eastern Energy - Thailand
- VISA Power Limited - India
- Miang Besar Coal Terminal - Indonesia
- Trasteel International SA, Italy
- Aditya Birla Group - India
- Independent Power Producers Association of India
- Indonesian Coal Mining Association
- Port Waratah Coal Services - Australia
- Parliament of New Zealand
- Maheswari Brothers Coal Limited - India
- Power Finance Corporation Ltd., India
- Carbofer General Trading SA - India
- Planning Commission, India
- Indo Tambangraya Megah - Indonesia
- Gujarat Mineral Development Corp Ltd - India
- SN Aboitiz Power Inc, Philippines
- The Treasury - Australian Government
- Vizag Seaport Private Limited - India
- PTC India Limited - India
- Indian Oil Corporation Limited
- Interocean Group of Companies - India
- Ministry of Finance - Indonesia
- London Commodity Brokers - England
- ICICI Bank Limited - India
- European Bulk Services B.V. - Netherlands
- Timah Investasi Mineral - Indoneisa
- Gujarat Electricity Regulatory Commission - India
- Directorate General of MIneral and Coal - Indonesia
- Bhushan Steel Limited - India
- Africa Commodities Group - South Africa
- MS Steel International - UAE
- Standard Chartered Bank - UAE
- Offshore Bulk Terminal Pte Ltd, Singapore
- Bharathi Cement Corporation - India
- Mercuria Energy - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Romanian Commodities Exchange
- Mjunction Services Limited - India
- Cigading International Bulk Terminal - Indonesia
- Coal and Oil Company - UAE
- Heidelberg Cement - Germany
- Central Electricity Authority - India
- Australian Commodity Traders Exchange
- The State Trading Corporation of India Ltd
- Karaikal Port Pvt Ltd - India
- Altura Mining Limited, Indonesia
- Uttam Galva Steels Limited - India
- Sarangani Energy Corporation, Philippines
- Salva Resources Pvt Ltd - India
- Price Waterhouse Coopers - Russia
- Jorong Barutama Greston.PT - Indonesia
- Orica Australia Pty. Ltd.
- Intertek Mineral Services - Indonesia
- Borneo Indobara - Indonesia
- Holcim Trading Pte Ltd - Singapore
- TeaM Sual Corporation - Philippines
- Parry Sugars Refinery, India
- Coastal Gujarat Power Limited - India
- Cement Manufacturers Association - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Bulk Trading Sa - Switzerland
- Kartika Selabumi Mining - Indonesia
- Indian Energy Exchange, India
- Renaissance Capital - South Africa
- Electricity Generating Authority of Thailand
- Ambuja Cements Ltd - India
- Tamil Nadu electricity Board
- GMR Energy Limited - India
- Thiess Contractors Indonesia
- Siam City Cement - Thailand
- New Zealand Coal & Carbon
- Chettinad Cement Corporation Ltd - India
- IEA Clean Coal Centre - UK
- Globalindo Alam Lestari - Indonesia
- SMG Consultants - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Anglo American - United Kingdom
- AsiaOL BioFuels Corp., Philippines
- Bhatia International Limited - India
- Kapuas Tunggal Persada - Indonesia
- Xindia Steels Limited - India
- Siam City Cement PLC, Thailand
- Samtan Co., Ltd - South Korea
- Neyveli Lignite Corporation Ltd, - India
- PetroVietnam Power Coal Import and Supply Company
- Global Coal Blending Company Limited - Australia
- Wilmar Investment Holdings
- SMC Global Power, Philippines
- Star Paper Mills Limited - India
- Global Green Power PLC Corporation, Philippines
- Pipit Mutiara Jaya. PT, Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Bhoruka Overseas - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Wood Mackenzie - Singapore
- Billiton Holdings Pty Ltd - Australia
- Meenaskhi Energy Private Limited - India
- Edison Trading Spa - Italy
- Bahari Cakrawala Sebuku - Indonesia
- Sakthi Sugars Limited - India
- Savvy Resources Ltd - HongKong
- Semirara Mining Corp, Philippines
- Therma Luzon, Inc, Philippines
- PowerSource Philippines DevCo
- ASAPP Information Group - India
- Attock Cement Pakistan Limited
- Meralco Power Generation, Philippines
- Coalindo Energy - Indonesia
- GVK Power & Infra Limited - India
- Medco Energi Mining Internasional
- Eastern Coal Council - USA
- Iligan Light & Power Inc, Philippines
- Rashtriya Ispat Nigam Limited - India
- The University of Queensland
- OPG Power Generation Pvt Ltd - India
- IHS Mccloskey Coal Group - USA
- Sical Logistics Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- Lanco Infratech Ltd - India
- Goldman Sachs - Singapore
- Formosa Plastics Group - Taiwan
- International Coal Ventures Pvt Ltd - India
- Gujarat Sidhee Cement - India
- India Bulls Power Limited - India
- Antam Resourcindo - Indonesia
- Chamber of Mines of South Africa
- Sinarmas Energy and Mining - Indonesia
- Sree Jayajothi Cements Limited - India
- Sindya Power Generating Company Private Ltd
- Tata Chemicals Ltd - India
- Minerals Council of Australia
- Essar Steel Hazira Ltd - India
- Ind-Barath Power Infra Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Aboitiz Power Corporation - Philippines
- Straits Asia Resources Limited - Singapore
- Manunggal Multi Energi - Indonesia
- Orica Mining Services - Indonesia
- Merrill Lynch Commodities Europe
- PNOC Exploration Corporation - Philippines
- Videocon Industries ltd - India
- Metalloyd Limited - United Kingdom
- Singapore Mercantile Exchange
- Dalmia Cement Bharat India
- Toyota Tsusho Corporation, Japan
- Kobexindo Tractors - Indoneisa
- Global Business Power Corporation, Philippines
- TNB Fuel Sdn Bhd - Malaysia
- Leighton Contractors Pty Ltd - Australia
- Maharashtra Electricity Regulatory Commission - India
- Jaiprakash Power Ventures ltd
- Thai Mozambique Logistica
- CNBM International Corporation - China
- Agrawal Coal Company - India
- Mercator Lines Limited - India
- Binh Thuan Hamico - Vietnam
- Ministry of Mines - Canada
- Deloitte Consulting - India
- White Energy Company Limited
- Bangladesh Power Developement Board
- Kalimantan Lumbung Energi - Indonesia
- South Luzon Thermal Energy Corporation
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Krishnapatnam Port Company Ltd. - India
- Kohat Cement Company Ltd. - Pakistan
- Economic Council, Georgia
- Bukit Makmur.PT - Indonesia
- Australian Coal Association
- Semirara Mining and Power Corporation, Philippines
- Sojitz Corporation - Japan
- Rio Tinto Coal - Australia
- Marubeni Corporation - India
- Bukit Baiduri Energy - Indonesia
- Kideco Jaya Agung - Indonesia
- Banpu Public Company Limited - Thailand
- Asmin Koalindo Tuhup - Indonesia
- Vedanta Resources Plc - India
- Ceylon Electricity Board - Sri Lanka
- Malabar Cements Ltd - India
- LBH Netherlands Bv - Netherlands
- Barasentosa Lestari - Indonesia
- Mintek Dendrill Indonesia
- Kumho Petrochemical, South Korea
- Oldendorff Carriers - Singapore
- McConnell Dowell - Australia
- Ministry of Transport, Egypt
- GAC Shipping (India) Pvt Ltd
- Kepco SPC Power Corporation, Philippines
- Central Java Power - Indonesia
- Larsen & Toubro Limited - India
- Energy Link Ltd, New Zealand
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