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Wednesday, 25 May 16
MEDIATION AS A WAY TO RESOLVE DISPUTES IN THE SHIPPING INDUSTRY - LANA JACOBS
 KNOWLEDGE TO ELEVATE
The shipping market is currently experiencing a serious recession with the Baltic Dry Index and Baltic Capesize Index both at record low levels in early 2016. In addition, capesize rates fell to under USD 2000 a day in January 2016. Coupled with the operating expenses for a standard Capesize vessel, which are estimated to be around USD 6 000 a day, this suggests that the majority of vessels are operating at a loss. Industry experts do not expect any major improvement on these numbers over the next year. As a result, fewer ships are also being built and sold.
In January, TradeWinds reported that Asia-to-Europe trade experienced negative growth, as well as those routes linked to China, West Africa and South America. Moreover, lower demand growth is forecast for container shipping, in the region of a meagre 1% to 3%. The forecast is grim and market conditions are challenging for all service providers, especially shipping lines seeking to retain their key clients, bring in sufficient income and ensure that agreements are honoured.
In these conditions, disputes are widespread. It is therefore essential for parties to maintain relationships with key customers and retain business. When service providers are faced with the need to retain key clients, however, they often make a commercial decision to write-off the loss rather than to enforce a contract and engage in costly litigation or arbitration.
The advantages of mediation as a means to resolving disputes in the shipping industry are its speed, cost and flexibility. Its outcome is aimed at obtaining a value-added, future orientated, commercial solution for all parties involved. Mediation is not restricted to a ‘winner-loser’ outcome, but rather envisages a ‘mutual gains outcome’. Furthermore, mediation is without prejudice to any further remedies or future and/ or ongoing litigation.
Jonathan Lux, a London-based barrister and mediation expert with 30 years’ experience as a solicitor at Ince & Co in the field of shipping, is of the opinion that mediation is the future of dispute resolution. Although the shipping industry is a difficult sector to convince, he believes that the benefits of this approach are numerous.
London Maritime Arbitrators Association (LMAA) arbitration, is so well entrenched as the primary method of dispute resolution within the shipping industry, that although parties complain about the inefficiency, expense and inflexibility of the system, they are loathe to take an alternative approach.
This is not surprising as arbitration is such a well-established form of dispute resolution in the shipping industry. In an international context, mediation is not as well established as arbitration. The 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) is the key instrument in facilitating cross-border arbitral awards. The New York Convention has more than 145 signatory countries and imposes an international obligation on state courts of signatory countries to refer parties to arbitration in lieu of state court proceedings and to grant recognition of awards arising out of such agreements. However, there is no comparable cross-border instrument governing mediation proceedings or their outcomes.
In the future, however, mediation is bound to feature more frequently because of the regulatory requirements in the United Kingdom and the European Union. The English Civil procedure rules of 1999 introduced the concept of ‘active case management’ which is defined as encouraging parties to use an alternative dispute resolution procedure. The power of the court goes as far as to order adverse costs despite a litigant being successful at trial, because they had unreasonably refused to follow the court’s suggestion to mediate the dispute. This approach was demonstrated in the case of Dunnet v Railtrack.
Court mandated mediation is also a part of other common law jurisdictions including Australia and Singapore. The European Union has also issued directives in terms of cross-border mediation and consumer mediation, which compels each member state to deal with mediation in national legislation. Germany has recently done so with the introduction of the Act to Promote Mediation and Other Methods of Out-of-Court Dispute Resolution in 2012.
The concept of court sanctioned alternative dispute resolution is not novel to the South African legal system. In fact, the Uniform Rules of Court dictate that in preparation for trial, parties hold a pre-trial conference and complete a minute, to be filed in the court file in preparation for a pre-trial hearing. In the minute, parties must confirm that they have considered alternative dispute resolution including mediation and arbitration. The usual practice is for parties to simply state that alternative dispute resolution is not an option. At present, there is no costs sanction for parties in doing so.
As procedural aspects of the South African legal system tend to develop along similar lines to those of the English legal system, an evolution to court directed mediation or to stricter cost penalties for parties who fail to refer appropriate cases to mediation, seems a likely possibility especially in light of the backlog of civil disputes awaiting trial. At the very least and given the context, it may be prudent for the judiciary and legislature to undertake a serious consideration of court directed alternative dispute resolution.
Most recently, South Africa has tabled the International Arbitration Bill, 2016. The Bill aims to incorporate the model law designed by the UN Commission on International Trade Law as the cornerstone of South Africa’s international arbitration regime. The bill defines the concept of ‘conciliation’ to include mediation and importantly codifies the right to conciliation within the context of an arbitration, providing that parties to an arbitration agreement may refer to dispute subject to such agreement to conciliation provided that the agreement provides for such mechanism. The Bill further incorporates the UNICITRAL conciliation rules should parties wish to engage in the conciliation process.
It is clear that there is a move towards mediation as the preferred form of alternative dispute resolution. The key question is how this can be managed in the shipping industry and how mediation can be incorporated into commercial shipping agreements.
Bowman Gilfillan Africa Group’s Shipping & Logistics Practice will hold a panel discussion on this topic in the firm’s Cape Town office at the end of June this year.
Source: Lana Jacobs, associate, Bowman Gilfillan Africa Group’s Shipping & Logistics Practice
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Wednesday, 01 June 16
INDIA'S COAL IMPORTS IN APRIL 2016 DECLINED 15% Y/Y; COAL INDIA INCREASED COAL PRICES BY 6.2%
Coal India has approved raising weighted average coal prices by 6.2 per cent over the current price for both regulated and non-regulated sectors.
...
Wednesday, 01 June 16
ZERO SUPPLY TO FUEL GROWTH IN THE DRY BULK MARKET SAYS BIMCO PRESIDENT
The dry bulk market could become profitable again in 2019 – but only if a series of extremely tough and sustained measures are taken by shipo ...
Wednesday, 01 June 16
MARKET INSIGHT - LINOS KOGEVINAS
In another page from this year’s oil drama, oil has, after a series of gains, rebounded to ~$50 / barrel and immediately stopped climbing. &n ...
Tuesday, 31 May 16
CS50 INDONESIA COAL INDEX UP 0.28% COMPARED WITH A WEEK AGO
COALspot.com: Average 5000 GAR coal index of Indonesian origin was up 0.28 percent week over week to averaging $39.01 per ton this past week, shows ...
Monday, 30 May 16
BORYEONG POWER PLANT TO IMPORT HALF A MILLION TONS OF BITUMINOUS COAL
COALspot.com: South Korea’s state-owned utility Korea Midland Power (KOMIPO) issued a new tender for 500,000 Metric Tons of Bituminous Coal T ...
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Showing 2411 to 2415 news of total 6871 |
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- Maharashtra Electricity Regulatory Commission - India
- Kapuas Tunggal Persada - Indonesia
- Power Finance Corporation Ltd., India
- Miang Besar Coal Terminal - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Aboitiz Power Corporation - Philippines
- GAC Shipping (India) Pvt Ltd
- Bhoruka Overseas - Indonesia
- Bulk Trading Sa - Switzerland
- Sojitz Corporation - Japan
- Deloitte Consulting - India
- Minerals Council of Australia
- Grasim Industreis Ltd - India
- Kideco Jaya Agung - Indonesia
- Sakthi Sugars Limited - India
- New Zealand Coal & Carbon
- Bank of Tokyo Mitsubishi UFJ Ltd
- The Treasury - Australian Government
- Savvy Resources Ltd - HongKong
- Eastern Coal Council - USA
- Bayan Resources Tbk. - Indonesia
- Meenaskhi Energy Private Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Pendopo Energi Batubara - Indonesia
- Romanian Commodities Exchange
- Global Green Power PLC Corporation, Philippines
- India Bulls Power Limited - India
- White Energy Company Limited
- Krishnapatnam Port Company Ltd. - India
- Carbofer General Trading SA - India
- Posco Energy - South Korea
- Kumho Petrochemical, South Korea
- Siam City Cement PLC, Thailand
- Chamber of Mines of South Africa
- Petron Corporation, Philippines
- Baramulti Group, Indonesia
- LBH Netherlands Bv - Netherlands
- Samtan Co., Ltd - South Korea
- Ministry of Transport, Egypt
- Binh Thuan Hamico - Vietnam
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Kepco SPC Power Corporation, Philippines
- Chettinad Cement Corporation Ltd - India
- Cement Manufacturers Association - India
- Port Waratah Coal Services - Australia
- Electricity Authority, New Zealand
- Parry Sugars Refinery, India
- Gujarat Mineral Development Corp Ltd - India
- Alfred C Toepfer International GmbH - Germany
- Central Electricity Authority - India
- Ambuja Cements Ltd - India
- Rio Tinto Coal - Australia
- Oldendorff Carriers - Singapore
- Star Paper Mills Limited - India
- Ministry of Mines - Canada
- Mercuria Energy - Indonesia
- Orica Mining Services - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Coalindo Energy - Indonesia
- GMR Energy Limited - India
- Sarangani Energy Corporation, Philippines
- Global Business Power Corporation, Philippines
- International Coal Ventures Pvt Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Formosa Plastics Group - Taiwan
- Kartika Selabumi Mining - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Straits Asia Resources Limited - Singapore
- Standard Chartered Bank - UAE
- Electricity Generating Authority of Thailand
- Directorate Of Revenue Intelligence - India
- Manunggal Multi Energi - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Borneo Indobara - Indonesia
- Parliament of New Zealand
- London Commodity Brokers - England
- Metalloyd Limited - United Kingdom
- Essar Steel Hazira Ltd - India
- SMG Consultants - Indonesia
- OPG Power Generation Pvt Ltd - India
- Indian Oil Corporation Limited
- Merrill Lynch Commodities Europe
- CIMB Investment Bank - Malaysia
- Asmin Koalindo Tuhup - Indonesia
- PTC India Limited - India
- Jaiprakash Power Ventures ltd
- Ministry of Finance - Indonesia
- Attock Cement Pakistan Limited
- Global Coal Blending Company Limited - Australia
- Jindal Steel & Power Ltd - India
- Bukit Baiduri Energy - Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Edison Trading Spa - Italy
- Intertek Mineral Services - Indonesia
- Goldman Sachs - Singapore
- GN Power Mariveles Coal Plant, Philippines
- Indogreen Group - Indonesia
- Sinarmas Energy and Mining - Indonesia
- Iligan Light & Power Inc, Philippines
- Vizag Seaport Private Limited - India
- Trasteel International SA, Italy
- Larsen & Toubro Limited - India
- Uttam Galva Steels Limited - India
- The State Trading Corporation of India Ltd
- Coal and Oil Company - UAE
- TeaM Sual Corporation - Philippines
- South Luzon Thermal Energy Corporation
- Videocon Industries ltd - India
- Malabar Cements Ltd - India
- Sree Jayajothi Cements Limited - India
- Economic Council, Georgia
- PNOC Exploration Corporation - Philippines
- Tata Chemicals Ltd - India
- Thai Mozambique Logistica
- Africa Commodities Group - South Africa
- Salva Resources Pvt Ltd - India
- Mintek Dendrill Indonesia
- Makarim & Taira - Indonesia
- Heidelberg Cement - Germany
- Karbindo Abesyapradhi - Indoneisa
- Bukit Makmur.PT - Indonesia
- Barasentosa Lestari - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Globalindo Alam Lestari - Indonesia
- Agrawal Coal Company - India
- Madhucon Powers Ltd - India
- Simpson Spence & Young - Indonesia
- Sindya Power Generating Company Private Ltd
- Vedanta Resources Plc - India
- VISA Power Limited - India
- Bhushan Steel Limited - India
- Indo Tambangraya Megah - Indonesia
- Wilmar Investment Holdings
- Central Java Power - Indonesia
- European Bulk Services B.V. - Netherlands
- Dalmia Cement Bharat India
- Leighton Contractors Pty Ltd - Australia
- Coastal Gujarat Power Limited - India
- Cigading International Bulk Terminal - Indonesia
- Price Waterhouse Coopers - Russia
- Riau Bara Harum - Indonesia
- The University of Queensland
- Energy Development Corp, Philippines
- Aditya Birla Group - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Commonwealth Bank - Australia
- Indian Energy Exchange, India
- Planning Commission, India
- Altura Mining Limited, Indonesia
- Indika Energy - Indonesia
- AsiaOL BioFuels Corp., Philippines
- GVK Power & Infra Limited - India
- Latin American Coal - Colombia
- Maheswari Brothers Coal Limited - India
- Anglo American - United Kingdom
- McConnell Dowell - Australia
- Ind-Barath Power Infra Limited - India
- MS Steel International - UAE
- San Jose City I Power Corp, Philippines
- Holcim Trading Pte Ltd - Singapore
- Neyveli Lignite Corporation Ltd, - India
- Interocean Group of Companies - India
- Meralco Power Generation, Philippines
- Kohat Cement Company Ltd. - Pakistan
- Karaikal Port Pvt Ltd - India
- Indonesian Coal Mining Association
- Eastern Energy - Thailand
- IHS Mccloskey Coal Group - USA
- Directorate General of MIneral and Coal - Indonesia
- Bangladesh Power Developement Board
- Marubeni Corporation - India
- Gujarat Sidhee Cement - India
- Mjunction Services Limited - India
- Sical Logistics Limited - India
- Siam City Cement - Thailand
- Australian Coal Association
- Australian Commodity Traders Exchange
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Bharathi Cement Corporation - India
- Kaltim Prima Coal - Indonesia
- Medco Energi Mining Internasional
- Therma Luzon, Inc, Philippines
- Banpu Public Company Limited - Thailand
- Wood Mackenzie - Singapore
- SMC Global Power, Philippines
- TNB Fuel Sdn Bhd - Malaysia
- Thiess Contractors Indonesia
- Independent Power Producers Association of India
- SN Aboitiz Power Inc, Philippines
- PowerSource Philippines DevCo
- Vijayanagar Sugar Pvt Ltd - India
- Antam Resourcindo - Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Pipit Mutiara Jaya. PT, Indonesia
- ASAPP Information Group - India
- Timah Investasi Mineral - Indoneisa
- Singapore Mercantile Exchange
- CNBM International Corporation - China
- ICICI Bank Limited - India
- Semirara Mining and Power Corporation, Philippines
- Bhatia International Limited - India
- Tamil Nadu electricity Board
- Semirara Mining Corp, Philippines
- Kobexindo Tractors - Indoneisa
- Ceylon Electricity Board - Sri Lanka
- Renaissance Capital - South Africa
- Mercator Lines Limited - India
- Bukit Asam (Persero) Tbk - Indonesia
- Georgia Ports Authority, United States
- IEA Clean Coal Centre - UK
- Toyota Tsusho Corporation, Japan
- Energy Link Ltd, New Zealand
- Lanco Infratech Ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Xindia Steels Limited - India
- Orica Australia Pty. Ltd.
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