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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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- Chamber of Mines of South Africa
- New Zealand Coal & Carbon
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Ministry of Transport, Egypt
- IHS Mccloskey Coal Group - USA
- Indogreen Group - Indonesia
- PNOC Exploration Corporation - Philippines
- Kepco SPC Power Corporation, Philippines
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- European Bulk Services B.V. - Netherlands
- Gujarat Mineral Development Corp Ltd - India
- Madhucon Powers Ltd - India
- Standard Chartered Bank - UAE
- Australian Coal Association
- Essar Steel Hazira Ltd - India
- Lanco Infratech Ltd - India
- Petron Corporation, Philippines
- Economic Council, Georgia
- Altura Mining Limited, Indonesia
- Eastern Energy - Thailand
- Pipit Mutiara Jaya. PT, Indonesia
- Trasteel International SA, Italy
- Grasim Industreis Ltd - India
- Georgia Ports Authority, United States
- Kideco Jaya Agung - Indonesia
- Wilmar Investment Holdings
- Planning Commission, India
- Vedanta Resources Plc - India
- Sindya Power Generating Company Private Ltd
- Thiess Contractors Indonesia
- Interocean Group of Companies - India
- Salva Resources Pvt Ltd - India
- Energy Development Corp, Philippines
- MS Steel International - UAE
- Videocon Industries ltd - India
- GMR Energy Limited - India
- Baramulti Group, Indonesia
- Renaissance Capital - South Africa
- Port Waratah Coal Services - Australia
- Intertek Mineral Services - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Global Green Power PLC Corporation, Philippines
- Neyveli Lignite Corporation Ltd, - India
- Rashtriya Ispat Nigam Limited - India
- Central Electricity Authority - India
- Borneo Indobara - Indonesia
- Star Paper Mills Limited - India
- South Luzon Thermal Energy Corporation
- Romanian Commodities Exchange
- Siam City Cement - Thailand
- Coalindo Energy - Indonesia
- Toyota Tsusho Corporation, Japan
- Manunggal Multi Energi - Indonesia
- Pendopo Energi Batubara - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Kobexindo Tractors - Indoneisa
- Deloitte Consulting - India
- Merrill Lynch Commodities Europe
- CIMB Investment Bank - Malaysia
- Bharathi Cement Corporation - India
- Kaltim Prima Coal - Indonesia
- Attock Cement Pakistan Limited
- Bangladesh Power Developement Board
- Bhoruka Overseas - Indonesia
- Orica Mining Services - Indonesia
- Sakthi Sugars Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Iligan Light & Power Inc, Philippines
- Agrawal Coal Company - India
- Kartika Selabumi Mining - Indonesia
- Wood Mackenzie - Singapore
- Anglo American - United Kingdom
- San Jose City I Power Corp, Philippines
- Sree Jayajothi Cements Limited - India
- TeaM Sual Corporation - Philippines
- Rio Tinto Coal - Australia
- Bukit Baiduri Energy - Indonesia
- Heidelberg Cement - Germany
- Kohat Cement Company Ltd. - Pakistan
- Sojitz Corporation - Japan
- Vizag Seaport Private Limited - India
- Gujarat Electricity Regulatory Commission - India
- VISA Power Limited - India
- Samtan Co., Ltd - South Korea
- Parry Sugars Refinery, India
- Billiton Holdings Pty Ltd - Australia
- Central Java Power - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Orica Australia Pty. Ltd.
- PTC India Limited - India
- Energy Link Ltd, New Zealand
- Therma Luzon, Inc, Philippines
- Timah Investasi Mineral - Indoneisa
- The State Trading Corporation of India Ltd
- Karbindo Abesyapradhi - Indoneisa
- CNBM International Corporation - China
- Bukit Makmur.PT - Indonesia
- GAC Shipping (India) Pvt Ltd
- Semirara Mining Corp, Philippines
- Semirara Mining and Power Corporation, Philippines
- Antam Resourcindo - Indonesia
- SN Aboitiz Power Inc, Philippines
- Ministry of Finance - Indonesia
- Latin American Coal - Colombia
- Marubeni Corporation - India
- Goldman Sachs - Singapore
- Simpson Spence & Young - Indonesia
- Makarim & Taira - Indonesia
- Leighton Contractors Pty Ltd - Australia
- Mercuria Energy - Indonesia
- Commonwealth Bank - Australia
- Chettinad Cement Corporation Ltd - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Ind-Barath Power Infra Limited - India
- Vijayanagar Sugar Pvt Ltd - India
- Meralco Power Generation, Philippines
- Electricity Generating Authority of Thailand
- SMC Global Power, Philippines
- Petrochimia International Co. Ltd.- Taiwan
- LBH Netherlands Bv - Netherlands
- Bulk Trading Sa - Switzerland
- GVK Power & Infra Limited - India
- AsiaOL BioFuels Corp., Philippines
- SMG Consultants - Indonesia
- Ministry of Mines - Canada
- Bhushan Steel Limited - India
- Indian Energy Exchange, India
- Savvy Resources Ltd - HongKong
- Ceylon Electricity Board - Sri Lanka
- Africa Commodities Group - South Africa
- Xindia Steels Limited - India
- Edison Trading Spa - Italy
- Karaikal Port Pvt Ltd - India
- Bhatia International Limited - India
- Jindal Steel & Power Ltd - India
- Sical Logistics Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Jorong Barutama Greston.PT - Indonesia
- Kumho Petrochemical, South Korea
- Aboitiz Power Corporation - Philippines
- Sinarmas Energy and Mining - Indonesia
- Meenaskhi Energy Private Limited - India
- The University of Queensland
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- India Bulls Power Limited - India
- Binh Thuan Hamico - Vietnam
- TNB Fuel Sdn Bhd - Malaysia
- Ambuja Cements Ltd - India
- Mintek Dendrill Indonesia
- PowerSource Philippines DevCo
- Siam City Cement PLC, Thailand
- Bukit Asam (Persero) Tbk - Indonesia
- Singapore Mercantile Exchange
- ASAPP Information Group - India
- Parliament of New Zealand
- Global Business Power Corporation, Philippines
- Posco Energy - South Korea
- Larsen & Toubro Limited - India
- Riau Bara Harum - Indonesia
- Malabar Cements Ltd - India
- Mercator Lines Limited - India
- Medco Energi Mining Internasional
- Krishnapatnam Port Company Ltd. - India
- Independent Power Producers Association of India
- Global Coal Blending Company Limited - Australia
- Carbofer General Trading SA - India
- Price Waterhouse Coopers - Russia
- Indo Tambangraya Megah - Indonesia
- McConnell Dowell - Australia
- Directorate Of Revenue Intelligence - India
- Directorate General of MIneral and Coal - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Oldendorff Carriers - Singapore
- International Coal Ventures Pvt Ltd - India
- Electricity Authority, New Zealand
- Sarangani Energy Corporation, Philippines
- Uttam Galva Steels Limited - India
- Indonesian Coal Mining Association
- Australian Commodity Traders Exchange
- London Commodity Brokers - England
- Kalimantan Lumbung Energi - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- ICICI Bank Limited - India
- Metalloyd Limited - United Kingdom
- Jaiprakash Power Ventures ltd
- Coal and Oil Company - UAE
- IEA Clean Coal Centre - UK
- Asmin Koalindo Tuhup - Indonesia
- White Energy Company Limited
- Coastal Gujarat Power Limited - India
- Formosa Plastics Group - Taiwan
- Straits Asia Resources Limited - Singapore
- Dalmia Cement Bharat India
- Bayan Resources Tbk. - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Aditya Birla Group - India
- Mjunction Services Limited - India
- Maheswari Brothers Coal Limited - India
- The Treasury - Australian Government
- Gujarat Sidhee Cement - India
- Power Finance Corporation Ltd., India
- PetroVietnam Power Coal Import and Supply Company
- Minerals Council of Australia
- Indian Oil Corporation Limited
- Eastern Coal Council - USA
- Indika Energy - Indonesia
- Barasentosa Lestari - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- OPG Power Generation Pvt Ltd - India
- Banpu Public Company Limited - Thailand
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Thai Mozambique Logistica
- Tamil Nadu electricity Board
- Globalindo Alam Lestari - Indonesia
- Cement Manufacturers Association - India
- Tata Chemicals Ltd - India
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