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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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Monday, 30 May 16
BCI ENDING AT 830 POINTS, DOWN 4.6 PER CENT W/W
COALspot.com: The Baltic Exchange, tracking rates for ships carrying dry bulk commodities decline this week. The freight market was weak this past ...
Friday, 27 May 16
PET-COKE IMPORTS TO FACE PRESSURE IN INDIA
COALspot.com: An Indian environmental activist moved the National Green Tribunal seeking ban on the use of all forms of petroleum coke, also called ...
Friday, 27 May 16
US COAL PRODUCTION ROSE 2.9% WOW, ACCORDING TO EIA
COALspot.com – U.S the world’s second largest coal producer has produced approximately totaled an estimated 11.7 million short tons (mm ...
Thursday, 26 May 16
GIANT ORE CARRIERS SET TO PLAY A BIGGER ROLE IN THE GLOBAL SHIPPING FLEET: CHINA EMBRACES VALEMAXES - RICHARD SCOTT
Another phase of the giant ships era is approaching. Chinese shipowners placed orders recently for 30 huge ‘valemax’ ore carriers. Thes ...
Wednesday, 25 May 16
DRY BULK SNP MARKET DISPLAYS SIGNS OF STRENGTH - GEORGE ILIOPOULOS
Only a couple of weeks away from the world’s most prominent maritime event, the market for tankers displays an evident lack of confidence in ...
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Showing 2416 to 2420 news of total 6871 |
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- Siam City Cement PLC, Thailand
- Kartika Selabumi Mining - Indonesia
- AsiaOL BioFuels Corp., Philippines
- McConnell Dowell - Australia
- Sree Jayajothi Cements Limited - India
- Indo Tambangraya Megah - Indonesia
- Mercator Lines Limited - India
- Borneo Indobara - Indonesia
- Bukit Makmur.PT - Indonesia
- Dalmia Cement Bharat India
- Star Paper Mills Limited - India
- Bhushan Steel Limited - India
- Mjunction Services Limited - India
- Coastal Gujarat Power Limited - India
- Xindia Steels Limited - India
- GN Power Mariveles Coal Plant, Philippines
- Aboitiz Power Corporation - Philippines
- Sical Logistics Limited - India
- Baramulti Group, Indonesia
- Rio Tinto Coal - Australia
- Georgia Ports Authority, United States
- Maharashtra Electricity Regulatory Commission - India
- Bhoruka Overseas - Indonesia
- Central Java Power - Indonesia
- Intertek Mineral Services - Indonesia
- Eastern Coal Council - USA
- Australian Coal Association
- Attock Cement Pakistan Limited
- Aditya Birla Group - India
- Karaikal Port Pvt Ltd - India
- India Bulls Power Limited - India
- Savvy Resources Ltd - HongKong
- Ind-Barath Power Infra Limited - India
- Thai Mozambique Logistica
- Bhatia International Limited - India
- Siam City Cement - Thailand
- Asmin Koalindo Tuhup - Indonesia
- Sakthi Sugars Limited - India
- Minerals Council of Australia
- Bulk Trading Sa - Switzerland
- Medco Energi Mining Internasional
- Gujarat Sidhee Cement - India
- Australian Commodity Traders Exchange
- Formosa Plastics Group - Taiwan
- OPG Power Generation Pvt Ltd - India
- Tata Chemicals Ltd - India
- Banpu Public Company Limited - Thailand
- Oldendorff Carriers - Singapore
- Latin American Coal - Colombia
- Rashtriya Ispat Nigam Limited - India
- Semirara Mining and Power Corporation, Philippines
- Global Coal Blending Company Limited - Australia
- Power Finance Corporation Ltd., India
- Bangladesh Power Developement Board
- Bharathi Cement Corporation - India
- Meenaskhi Energy Private Limited - India
- Meralco Power Generation, Philippines
- Indika Energy - Indonesia
- Standard Chartered Bank - UAE
- Billiton Holdings Pty Ltd - Australia
- ICICI Bank Limited - India
- Kapuas Tunggal Persada - Indonesia
- Orica Australia Pty. Ltd.
- Chettinad Cement Corporation Ltd - India
- Indogreen Group - Indonesia
- Kalimantan Lumbung Energi - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Sarangani Energy Corporation, Philippines
- Pipit Mutiara Jaya. PT, Indonesia
- Merrill Lynch Commodities Europe
- Kobexindo Tractors - Indoneisa
- Anglo American - United Kingdom
- Bukit Asam (Persero) Tbk - Indonesia
- Global Green Power PLC Corporation, Philippines
- PetroVietnam Power Coal Import and Supply Company
- GAC Shipping (India) Pvt Ltd
- Indian Oil Corporation Limited
- Leighton Contractors Pty Ltd - Australia
- Sinarmas Energy and Mining - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Ambuja Cements Ltd - India
- Semirara Mining Corp, Philippines
- Jindal Steel & Power Ltd - India
- Antam Resourcindo - Indonesia
- San Jose City I Power Corp, Philippines
- Videocon Industries ltd - India
- Vedanta Resources Plc - India
- Salva Resources Pvt Ltd - India
- International Coal Ventures Pvt Ltd - India
- GMR Energy Limited - India
- Trasteel International SA, Italy
- PNOC Exploration Corporation - Philippines
- Barasentosa Lestari - Indonesia
- Kepco SPC Power Corporation, Philippines
- Bukit Baiduri Energy - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Kaltim Prima Coal - Indonesia
- PowerSource Philippines DevCo
- Orica Mining Services - Indonesia
- Timah Investasi Mineral - Indoneisa
- Madhucon Powers Ltd - India
- The University of Queensland
- Ceylon Electricity Board - Sri Lanka
- Essar Steel Hazira Ltd - India
- Africa Commodities Group - South Africa
- Directorate General of MIneral and Coal - Indonesia
- CNBM International Corporation - China
- Economic Council, Georgia
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Toyota Tsusho Corporation, Japan
- Directorate Of Revenue Intelligence - India
- Thiess Contractors Indonesia
- SMG Consultants - Indonesia
- Cement Manufacturers Association - India
- Bayan Resources Tbk. - Indonesia
- Wood Mackenzie - Singapore
- Uttam Galva Steels Limited - India
- Kideco Jaya Agung - Indonesia
- Bank of Tokyo Mitsubishi UFJ Ltd
- Marubeni Corporation - India
- Straits Asia Resources Limited - Singapore
- White Energy Company Limited
- Bahari Cakrawala Sebuku - Indonesia
- IHS Mccloskey Coal Group - USA
- Samtan Co., Ltd - South Korea
- Miang Besar Coal Terminal - Indonesia
- SMC Global Power, Philippines
- Central Electricity Authority - India
- Parliament of New Zealand
- Iligan Light & Power Inc, Philippines
- Holcim Trading Pte Ltd - Singapore
- Jaiprakash Power Ventures ltd
- Gujarat Mineral Development Corp Ltd - India
- Carbofer General Trading SA - India
- Renaissance Capital - South Africa
- Independent Power Producers Association of India
- Tamil Nadu electricity Board
- MS Steel International - UAE
- Mintek Dendrill Indonesia
- Interocean Group of Companies - India
- Eastern Energy - Thailand
- Price Waterhouse Coopers - Russia
- Pendopo Energi Batubara - Indonesia
- Manunggal Multi Energi - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Offshore Bulk Terminal Pte Ltd, Singapore
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Electricity Authority, New Zealand
- SN Aboitiz Power Inc, Philippines
- Altura Mining Limited, Indonesia
- Planning Commission, India
- CIMB Investment Bank - Malaysia
- Mercuria Energy - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- TeaM Sual Corporation - Philippines
- LBH Netherlands Bv - Netherlands
- Maheswari Brothers Coal Limited - India
- The Treasury - Australian Government
- Larsen & Toubro Limited - India
- TNB Fuel Sdn Bhd - Malaysia
- The State Trading Corporation of India Ltd
- London Commodity Brokers - England
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Chamber of Mines of South Africa
- Singapore Mercantile Exchange
- Goldman Sachs - Singapore
- Electricity Generating Authority of Thailand
- Parry Sugars Refinery, India
- Posco Energy - South Korea
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Sojitz Corporation - Japan
- Kumho Petrochemical, South Korea
- Makarim & Taira - Indonesia
- Port Waratah Coal Services - Australia
- Global Business Power Corporation, Philippines
- Riau Bara Harum - Indonesia
- VISA Power Limited - India
- Therma Luzon, Inc, Philippines
- Metalloyd Limited - United Kingdom
- Edison Trading Spa - Italy
- Ministry of Transport, Egypt
- Vizag Seaport Private Limited - India
- Sindya Power Generating Company Private Ltd
- Globalindo Alam Lestari - Indonesia
- Commonwealth Bank - Australia
- European Bulk Services B.V. - Netherlands
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Malabar Cements Ltd - India
- South Luzon Thermal Energy Corporation
- Indian Energy Exchange, India
- IEA Clean Coal Centre - UK
- Energy Development Corp, Philippines
- Romanian Commodities Exchange
- PTC India Limited - India
- Coalindo Energy - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Energy Link Ltd, New Zealand
- Heidelberg Cement - Germany
- Ministry of Finance - Indonesia
- Petron Corporation, Philippines
- Ministry of Mines - Canada
- ASAPP Information Group - India
- Indonesian Coal Mining Association
- New Zealand Coal & Carbon
- Wilmar Investment Holdings
- Neyveli Lignite Corporation Ltd, - India
- Agrawal Coal Company - India
- Simpson Spence & Young - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Binh Thuan Hamico - Vietnam
- Gujarat Electricity Regulatory Commission - India
- Lanco Infratech Ltd - India
- Coal and Oil Company - UAE
- Grasim Industreis Ltd - India
- Krishnapatnam Port Company Ltd. - India
- Deloitte Consulting - India
- GVK Power & Infra Limited - India
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