the enforcement of london arbitration agreements€¦ · chairman’s tel: 020 7936 3418 ~...

LSLC - MARITIME BUSINESS FORUM Quadrant House, 10 Fleet Street, London, EC4Y 1AU

Tel: 020 7936 3417 ~ E-mail: [email protected] Chairman’s Tel: 020 7936 3418 ~ Chairman’s E-mail: [email protected]

Web-site: www.shippinglbc.com © LSLC 2015

The Enforcement of London

Arbitration Agreements

Chairman:

Simon Gault – LMAA Arbitrator

Speakers:

Clare Ambrose – 20 Essex Street

Vasanti Selvaratnam QC – Stone Chambers

Robert Gay – Hill Dickinson LLP

The Broadgate Tower, 20 Primrose Street, London, EC3

Monday 16th November 2015

mailto:[email protected]

http://www.shippinglbc.com/




The issues for discussion include:

The practical impact of the Recast Brussels Regulation

What difference is made by the EU judgment in Gazprom ?

Would anti-suit injunctions from a tribunal work?

Can an award of damages be an effective alternative remedy?

Is it possible to take part in foreign proceedings on the merits without becoming bound by the result?

Do the LMAA terms give tribunals enough powers?

Part A

Recast Brussels I Regulation – Introduction and Practical Impact

Clare Ambrose

Part B

Anti-suit injunctions and the Gazprom case

Vasanti Selvaratnam QC

Part C

How to Defend a London Arbitration Agreement

Robert Gay

Part D

Do the LMAA Terms 2012 give tribunals enough powers to enforce their jurisdiction?

Simon Gault

Part E

Curricula Vitae

Part F Appendices

(separate handout)






Part A

Recast Brussels I Regulation –

Introduction and Practical Impact

Clare Ambrose



11/13/2015

1

THE ENFORCEMENT OF LONDON ARBITRATION AGREEMENTS

Recast Brussels I Regulation

Introduction and Practical Impact

16 November 2015 CLARE AMBROSE20 Essex Street

A LONDON ARBITRATION AGREEMENT

+ve – promise to arbitrate in London

-ve – promise not to bring proceedings elsewhere

JSC Ust Kamengorsk [2013]

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WHERE COURTS OF EU/ EEA STATES NOT INVOLVED

Injunction available to enforce -negative promise not to bring proceedings elsewhere

Donohue v Armco [2001] strong reason required to outweigh entitlement to an injunction e.g. delay, parallel proceedings

THE NEW YORKCONVENTION

Article II.3 – court when seised in a matter in respect of which parties have arbitration agreement, shall refer parties to arbitration “unless agreement null and void...inoperative or incapable of being performed”

Article III and V: obligation to recognise and enforce foreign awards, subject to limited exceptions – e.g. capacity, public policy

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RECAST BRUSSELS I REGULATION - 1215/2012

- Applicable to EU proceedings commencedfrom 10 January 2015

- Lugano Convention still governs

between EU states and Iceland

Norway and Switzerland

HISTORY OF RECAST REGULATION

Brussels Convention 1968

“Art 1(4) This Convention shall not apply to:

...(d) arbitration”

The Atlantic Emperor [1992]

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Same arbitration exception

West Tankers v Allianz [2009]

2007 to 2012 – highly disputed proposals for amendment of Regulation

BRUSSELS I REGULATION 2001

DISARMING TORPEDO VS

AVOIDING EU RULES ON ARBITRATION

RESULT: COMPROMISE

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RECAST BRUSSELS I REGULATION - 1215/2012

SAME EXCEPTION

Art 1(4): “The Regulation shall not apply to: ....d) arbitration....”

Art 73(2): “This Regulation shall not affect the application of the New York Convention”

NEW Recital 12

RECITAL 12(1) – STAY SITUATION

Uncontroversial

If Italian court seised of dispute and London arbitration agreement relied upon it can examine whether arbitration agreement is valid in accordance with its own national law (including its own conflict of laws rules) and decide whether to decline jurisdiction.

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RECITAL 12(2)- RULINGS ON JURISDICTION

Ruling by Italian or English court on validity of arbitration agreement not subject to rules of recognition of Regulation (whether decided as principal issue or as preliminary issue).

E.g. Italian court decides arbitration agreement is void. English court (and arbitral tribunal) is not obliged by the Regulation to follow that ruling.

Italian court also not obliged by the Regulation to recognise English court’s ruling on jurisdiction.

RECITAL 12(2) – CONSEQUENCES

Gives potential for inconsistent court rulings

West Tankers v Allianz SpA – unlikely to be decided differently on question of anti-suit injunctions from English court (query debate following Gazprom)

However – scope of West Tankers reduced.

English court can rule on jurisdiction even if EU court seised and has decided jurisdiction.

E.g. The Wadi Sudr [2009] would be decided differently under Recast Regulation

Toyota Tsusho Sugar v Prolat [2014] Cooke J

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RECITAL 12(3)- RULINGS ON SUBSTANCE

Recognition and enforcement of Italian judgment on substance not precluded even Italian court’s conclusion on validity of arbitration agreement does not require recognition.

“RECOGNITION SHOULD BE WITHOUT PREJUDICE TO COMPETENCE OF [ENGLISH] COURT TO DECIDE ON ...ENFORCEMENT OF ARBITRAL AWARDS UNDER NEW YORK CONVENTION, WHICH TAKES PRECEDENCE”

UNCERTAINTY: COMPETING ATTEMPTS TO ENFORCE

Recital maintains uncertainty as to enforcement Successful enforcement will depend on

good drafting of clauses getting fastest decision where enforcement takes place (e.g. Italy,

London, third country?) different approaches to public policy may affect

outcome

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Recognition of Italian judgment on jurisdiction v London award on jurisdiction

Enforcement of Italian judgment on merits v London award on merits

NOTE: English award is not NY Convention award in UK court

APPROACH OF ENGLISH COURT ON RECOGNITION & ENFORCEMENT

RECITAL 12(4)- ANCILLARY PROCEEDINGS

Not controversial

Covers appointment, conduct of arbitration and challenges

Follows The Atlantic Emperor

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CONCLUSIONS ON IMPACT OF RECAST REGULATION

Clear precedence given to New York Convention enforcement

Arbitration exception enhanced – Regulation does not cover court rulings on validity of arbitration agreement

Uncertainty remains:

Potential for inconsistent court rulings on jurisdiction – no rule in favour of court of seat

EU Judgment on merits still enforceable under Regulation

Still important to get first decision on merits

Query status of West Tankers decision

CLARE AMBROSE

20 Essex St

London

WC2R 3AL

Email: [email protected]

www.20essexst.com




Part B

Anti-suit injunctions and the Gazprom case




1

www.stonechambers.com

Anti suit injunctions and the Gazprom case:

Vasanti Selvaratnam QC, Stone Chambers


Gazprom - the facts

Arbitral ASI

Lithuanian Court referred questions relating to recognition and enforcement of the Award to the ECJ

Note: case concerned Brussels Reg and not Recast Reg

2


Opinion of AG Wathelet: Award fell within arbitration exception therefore no basis for refusal of recognition


The judgment of the ECJ

Narrow ratio

3


Are ASI's now possible post Gazprom?

The rival arguments


Anti suit injunctions and the Gazprom case:

Vasanti Selvaratnam QC, Stone Chambers

Stone Chambers London, 4 Field Court, Gray’s Inn, London WC1R 5EF | LDE 483 | T +44 (0)20 7440 6900Stone Chambers Singapore, 10 Collyer Quay, Ocean Financial Centre Level 40, Singapore 049315 | T +65 6808 6161

www.stonechambers.comT +44 (0)20 7440 6900

� Litigation, Arbitration & Mediation � Shipping & Maritime � Commodities & International Trade � Energy & Natural Resources � Road, Rail & Air Transport

� Insurance & Reinsurance � Banking & Finance � Civil Fraud � Employment � Company & Insolvency

London & Singapore

Anti suit injunctions and the Gazprom case


The Speaker:

Vasanti Selvaratnam QC is Joint Head of Stone Chambers. She practices in all aspects of international commercial litigation and arbitration, including shipping (wet and dry), commodities, banking and finance, conflict of law and jurisdiction disputes, all forms of interim urgent relief including freezing orders and anti-suit injunctions, and civil fraud.

She is particularly noted for her user friendly “hands on” approach to cases and for her ability quickly to get to grips with disputes raising complex factual and technical issues which require a sound grasp of expert evidence and mastery of detail.

Clients include the major P&I clubs, shipowners, charterers and salvors as well as large commercial organisations involved in commercial court litigation or international commercial arbitration in non shipping matters.

Reported leading cases include the Court of Appeal decisions in The Wadi Sudr [2010] 1 Lloyd’s Rep 193 (leading case on the arbitration exception, the Judgments Regulation and issue estoppel), Joint Stock Asset Management Co Ingosstrakh-Investments v BNP Paribas [2012] 1 Lloyd’s Rep 649 (leading case on non contractual anti-suit injunctions) and Madoff Securities International Ltd (in liquidation) v Yacht Bull Corporation [2010] EWHC 133 (Ch) (interrelationship between the Judgments Regulation and the Insolvency Regulation in relation to jurisdiction); Emirates Trading Agency v PMEPL (2014, friendly discussions clause a condition precedent to right to commence arbitration) and Emirates Trading Agency LLC v Sociedade de Fomento Industrial Private Ltd (2015, clarifies law on estoppel arising from a prior partial interim award on jurisdiction where the constitution of a majority of the Tribunal has changed).

Other recent noteworthy cases include: Nakanishi Marine v Gora Shipping and Attica Finance [2012] EWHC 3383 (Comm) which considers the effects of a tripartite subordination agreement on the rights of a junior lender as against the borrower and guarantor; RBS v FAl Oil Co Ltd and ors [2012] EWHC 3628 (Comm) which is a leading case on interim relief under section 25 CJJA 1982 and Stolt Kestrel [2014] EWHC 1731 (Adm) (mandatory extension of time where no reasonable opportunity to arrest under section 190(6) Merchant Shipping Act 1995 and other time bar issues).

Vasanti is recommended as a leading silk in Chambers & Partners and Legal 500 for shipping, commodities and interantional arbitration. She is noted for being a ‘poised and highly measured advocate’.

Part C


Robert Gay

13/11/2015

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Robert Gay

London Shipping Law Centre,16 November 2015

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Two scenarios

• You are a P&I Club, which has issued a LOU in favour of a cargo claimant.

• The LOU itself is subject to English law and the jurisdiction of the London High Court.

• The LOU will respond to a judgment/award of “a competent

court or tribunal”.

• The cargo claimant is likely to commence proceedings in Blackland.

Scenario (1)

Two scenarios

• You and your opposing party are both solvent, and both exposed to the enforcement of judgments, so that you will have to honour a judgment given in Blackland, but your opponents will have to honour a judgment given in England.

Scenario (2)

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Three things you might seek to do

• Prevent the foreign proceedings

• Block recognition/enforcement of the foreign judgment

• Recover damages reversing out the foreign judgment

Assume that you cannot prevent the foreign proceedings.

In scenario (1) you will want primarily to block recognition/enforcement against your LOU.

In scenario (2) you may want a judgment reversing out the foreign judgment.

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Two contexts

Blackland either is or is not within the European Union.

• "Within the European Union" is an abbreviation for within the ambit of the Recast Brussels Regulation, or the Lugano Convention, or . . .

Three (or four) obstacles which you may encounter

• Lèse-Majesté

• [?] Comity

• Recognition

• Estoppel

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Reasons why you may not be able to prevent the foreign proceedings by an anti-suit injunction

• Lèse-Majesté [within the European Union]

• Comity

• Unenforceability

Lèse-Majesté

I think it may remain the position that one court within the EU cannot make an anti-suit injunction against proceedings in another court within the EU.

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Lèse-Majesté

However, an arbitration tribunal can make an anti-suit order against proceedings within the EU,

and a court within the EU could recognise an arbitral anti-suit order.

Procedural question

But will the present procedure by which a London Arbitration Award is "enforced as a judgment" allow the English Court to recognise an arbitral anti-suit order and give effect to it by making an anti-suit injunction, breach of which would be contempt of court?

• Would it be necessary for there to be a further exercise of discretion by a Judge?

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Comity

• Comity as politeness.

• Comity as an attitude towards "labourers in the same vineyard".

Comity

There have been cases where English Courts have refused to make anti-suit injections where the foreign proceedings are under foreign legislation which is parallel in its aims to English legislation.

Philip Alexander Securities -v- Bamberger [1996] CLC 1757, 1767G and 1772G-H (Waller J, upheld by the Court of Appeal on other grounds)

The "Hari Blum", Through Transport Mutual -v- New India Assurance[2004] EWCA Civ 1598, [2005] 1 Lloyd's Rep 67, [94] and [96]

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Comity

Might such a consideration of comity also prevent an English Court from recognising a London Arbitration Award containing an anti-suit order and giving effect to the Award by issuing its own anti-suit injunction?

Unenforceability

If you can obtain an anti-suit injunction from the English Court, nevertheless if the foreign court will not pay attention to the anti-suit injunction, and the other party has no assets within the jurisdiction of the English Courts, then the anti-suit injunction will not prevent the foreign proceedings.

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Scenario (1)

If the Club LOU provides for the interpretation and enforcement of the LOU itself to be governed by English law and subject to the exclusive jurisdiction of the London High Court, the question will be what the English Court considers to be a “competent court or

tribunal”.

Scenario (1)

“Competent” does not mean “contractual”.

The “Juntha Rajprueck” [2003] EWCA Civ 378, [2003] 2 Lloyd’s Rep 107

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Scenario (1)

If Blackland is a Member State of the European Union, it may not assist the Club in defending its LOU that the word “competent” is the word used in the Regulation for a Court which has jurisdiction under the Regulation.

Scenario (1)

So, the Club will find itself seeking to resist recognition in England of the judgment of the Blackland Court.

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Blocking recognition within the EU

• If there is an arbitration agreement binding the cargo claimant

• If there is an Arbitration Award against the cargo claimant

• If there is a judgment from the English court inconsistent with the judgment coming from the Blackland Court.

Blocking recognition / enforcement of a judgment from outside the EU

This should be easy.

• Simply do not take part in the foreign proceedings on the merits.

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Blocking recognition / enforcement

However, the Club has reasons for wishing to take part on the merits.


It may be considered that if there is an anti-suit injunction from the English Court against the foreign proceedings, a judgment in the foreign proceedings will not be recognised / enforced by the English Court, even if one has taken part in the foreign proceedings on the merits.

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However, this has recently been denied.

Spliethoff -v- Bank of China [2015] EWHC 999 (Comm), [2015] 2 Lloyd's Rep 123, [129] – [138] (Carr J)

Spliethoff

There had been arbitral anti-suit orders [51], [62]

(and a previous [interim?] anti-suit injunction from the English Court, [49])

against Chinese proceedings by the Yard.

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Spliethoff

However, Spliethoff had taken part in the Yard's Chinese proceedings on the merits.

Carr J held that therefore the judgments in the Chinese proceedings must be recognised in England.

Spliethoff

Carr J speaks at [134] – [135] in terms of "breach of a jurisdiction or arbitration clause"and says that the effect of that is exhausted by CJJA 1982 s.32.

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Spliethoff

Carr J says at [136] that arbitral anti-suit orders cannot lead to a separate (and opposite) conclusion.

Effect of an anti-suit injunction

It is submitted that this would be wrong in principle, if the arbitral anti-suit orders had been converted into judgments of the English Court.

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It is a long-standing principle that a party who is in contempt of the English Court may not be heard.

• This principle began in the ecclesiastical courts, Hadkinson -v-Hadkinson [1952] P 285 (CA), 295-297 (Denning LJ) but it now clearly applies in all the divisions of the High Court (for example, Blue Sky One -v- Mahan Air [2010] EWHC 128 (Comm) (Beatson J).


And it is submitted that this principle will apply equally to a party who is seeking recognition / enforcement of a foreign judgment.

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Contempt of Court

The modern cases follow the statement of the rule by Denning LJ in Hadkinson page 298.

Contempt of Court

"It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy."

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Contempt of Court

A party who is in contempt may not be heard

• with regard to the matter on which he is in contempt

• except to argue that the order of which he is in breach ought not to have been made.

Contempt of Court

But a party who is in contempt will not be heard, only if the effect of his continuing contempt will

• either prevent a fair trial

• or prevent the (English) Court's orders in the matter from being effective.

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Contempt of Court

Since this is put in terms of public policy,

in relation to foreign proceedings within the EU, it may fit in with the EU Regulation which allows refusal of recognition on grounds of "public policy".


In the present scenario, the cargo claimant seeking recognition/enforcement of the foreign judgment is seeking recognition/enforcement of the very product of his failure to comply with the English Court's anti-suit injunction.

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As a matter of authority, it is not a blanket rule that a judgment obtained in breach of anti-suit injunction will not be recognised on grounds of public policy.

Golubovich -v- Golubovich

[2010] EWCA Civ 810, [2011] Fam 88

Golubovich

• Wife obtained in London a temporary anti-suit injunction against husband's divorce proceedings in Moscow.

• Husband went ahead and obtained a divorce in Moscow.

• The High Court refused recognition of the Moscow divorce (under the provision in the relevant Hague Convention "manifestly contrary to public policy").

• The Court of Appeal reversed that, and decreed recognition of the Moscow divorce.

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Golubovich

The Judge in the High Court had not formally held the husband in contempt, [37].

However, it seems that is not part of the ratioof the Court of Appeal, [38] and [76].

Golubovich

In Golubovich the substantial purpose behind the anti-suit was to preserve the wife's right to obtain ancillary relief in the English Courts,

and it was a part of the Court of Appeal's reasoning that there was another way of achieving this substantive purpose, [77].

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In the present scenario, by contrast, there is no way of making effective the purpose behind the anti-suit injunction other than by permanently refusing recognition to the foreign judgment obtained in breach of the injunction.

Effect of an arbitral anti-suit order

It is also submitted that Carr J's position would be wrong in principle if, at the time when the matter was before the Judge, the arbitral anti-suit orders were capable of being converted into judgments of the English Court.

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Scenario (2)

Because you will have to honour a judgment of the Blackland Court, you will not be concerned to block recognition in England, as such. Because the other party is exposed to a judgment of the English Court, you will be interested in proceedings to reverse out the judgment of the Blackland Court.

Scenario (2)

That is, you will be interested in obtaining and enforcing an arbitration award for damages for breach of the arbitration agreement.

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Lèse-Majesté

May there be a ban on judgments from one Court intended to reverse out a judgment from another Court within the area of “mutual

trust”?

Ban on reversing-out judgments within the EU?

On the one hand, Lewison J in Research in Motion -v- Visto said:

"To award damages against a party for having improperly invoked the process of a foreign court is an indirect interference with that foreign court."

[2007] EWHC 900 (Ch)

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Reversing-out judgments

It is noticeable that in AMT Futures -v- Marzillier[2014] EWHC 1085 (Comm), [2014] 2 Lloyd’s

Rep 349, AMT did not seek damages from Marzillier in respect of those cases where Marzillier’s clients had obtained judgments

against AMT from the German courts.


On the other hand, in The "Alexandros T" the Supreme Court [2013] UKSC 70, [2014] 1 Lloyd's Rep 223, did not decline jurisdiction or stay proceedings which were clearly aimed at reversing out possible judgments from the Greek Courts, and the Court of Appeal [2014] EWCA Civ 1010, [2014] 2 Lloyd's Rep 544, held that reversing-out proceedings did not infringe EU law.

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However, the question whether there is a ban on proceedings with this intention may not be the same as the questions whether jurisdiction should be declined under Article 29 of the Recast Regulation, or whether the proceedings should be stayed under Article 30.


In Turner -v- Grovit, Mr Grovit’s Spanish

proceedings were quite clearly intended to reverse out Mr Turner’s English Employment

Tribunal Award, and the ECJ did not suggest that there was a ban on such proceedings.

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However, the ECJ/CJEU only answers the questions which are asked of it: there was no enquiry from the Spanish court as to whether it was allowed to entertain such proceedings.


Despite the decision of the Court of Appeal, I think it may turn out to be the position that one court within the EU cannot entertain proceedings intended to reverse out the judgment of another court within the EU

• At least when the proceedings are claiming e.g. damages for breach of a jurisdiction clause

• It may be different when claiming on a contractual indemnity

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Award reversing out the judgment

However, arbitrators have power to award damages for breach of the arbitration agreement, not just in respect of the costs of foreign proceedings, but in respect of the amount of the foreign judgment itself.

CMA CGM -v- Hyundai Dockyard [2008] EWHC 2791 (Comm), [2009] 1 Lloyd’s Rep 213

The ‘Front Comor’ [2012] EWHC 854 (Comm), [2012] 2 Lloyd’s

Rep 103

Enforcing the award

And it seems a court within the EU could recognise an Award which reverses out a judgment from another court within the EU.

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Getting the award

One might get an award beforehand for damages to be assessed, but the assessment of damages itself can only take place after the Blackland judgment.

Enforcing the award

• If the Blackland Court’s judgment has not yet been

recognised by the English Court, this should be straightforward.

• If the Blackland Court’s judgment has already been

recognised by the English Court, then the English Court may be bound by the findings of fact (etc) of the Blackland Court (other than any holding that there is no binding arbitration agreement).

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Enforcing the award

Therefore, you may need also to take steps to block recognition of the Blackland judgment.

Getting the award

Whether the Blackland judgment is entitled to recognition under the Regulation may be irrelevant.

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Issue estoppel

However, in order to reduce the amount of damages which you may have to pay and then set about recovering back, you may wish to take part in the Blackland proceedings on the merits.

Issue estoppel

If a party has taken part in the Blackland proceedings on the merits, then there may be issue estoppels.

• Issue estoppel is part of the common law, and as such will naturally be binding in London arbitration also.

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Blocking issue estoppel?

If issue estoppel depends on the recognition of the foreign judgment

cf. in Carl Zeiss [1967] AC 853, the approach of Lords Reid (917-8) and Hodson (925-6)

then if you can block recognition, you have blocked issue estoppels.


However, it seems that issue estoppel does not depend on the foreign judgment being capable of being recognised/enforced.

Dicey, Morris & Collins (15th edition, 2012) paragraph 14-121

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Also, there is something peculiar about the way an anti-suit injunction would block recognition/enforcement: it is as if the foreign judgment is still there, it is only that the other party cannot come to the English court and seek recognition/enforcement.


So, will an anti-suit injunction from the English Court block issue estoppel in arbitration?

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And will an arbitral anti-suit order block issue estoppel in an arbitration?

• Do arbitrators have any inherent power not to hear those in contempt?


What if issue estoppel does not depend on recognition/enforceability?

• Nibbling at issuing estoppel

• Qualifying issue estoppel in the case of the defendant in foreign proceedings

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Nibbling away

It may be necessary to think about why the Blackland judgment is being said to be incorrect, and about which questions were argued by the party before the Blackland Court.

Nibbling away

• Did the Blackland Court apply the wrong law or (for example) interpret the Hague-Visby Rules differently from the way they would be interpreted in London and did the party not try to argue about this but simply accept that this would be the law applied by the Blackland Court?

If so, logically it might be said that the party did not submit this question to the Blackland Court.

cf. in Carl Zeiss, Lord Reid at 916A-B

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Nibbling away

• But if the party argued issues of fact, and it is now being said that the Blackland Court assessed the evidence incorrectly, so as to arrive at incorrect decisions on the facts?

Then logically the party did submit the questions of fact to the Blackland Court, and should be bound by the decision of the Blackland Court on the issues of fact.

Qualifying issue estoppel

In Carl Zeiss there appears to be a partial saving for the position of the party against whom an issue is raised in the foreign proceedings: it may not always be appropriate to expect a party to bring forward their full defence.

Lord Reid, 917C-D, 918C-D, Lord Hodson 926D, Lord Upjohn 947C-D, Lord Wilberforce 967D

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Perhaps we should have a wider saving for the party against whom an issue is raised?


One basis for issue estoppel is nemodebet bis vexari pro eadem causa,

but one might say it does not follow in the same way that no-one should be allowed to defend a claim twice over.

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Issue estoppel in arbitration

The other basis of issue estoppel is interest rei publicae ut sit finis litium, a public policy against repeat proceedings.

However, is this policy appropriate in the context of arbitration, or should thinking in the context of arbitration be purely contractual, in terms of a party's entitlement to the contractual tribunal?


Under the law of contract, the logical position is that you should respond to the other party's breach by mitigating your damages.

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Under the law of contract, the basis for a party who submits to the foreign court becoming bound by the result may be acceptance of the other party's repudiatory breach, or waiver of the arbitration agreement.

However, clearly, defending the foreign proceedings on the merits may not constitute acceptance of a repudiatory breach, or a waiver.


It is possible to take part in an arbitration expressly without prejudice to the question of the tribunal’s jurisdiction.

Should it not also be possible to take part in proceedings before the Blackland Court without thereby having submitted to its jurisdiction?

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Should it be possible to obtain pre-emptive relief from arbitrators, in way of a declaration that the other party is in breach of the arbitration agreement and that one is at liberty to take part in the Blackland proceedings by way of mitigation of one’s

losses arising from the other party’s breach, and

without becoming bound by any issue estoppel for the purposes of the arbitration?

Part D

Do the LMAA Terms 2012 give tribunals enough powers to

enforce their jurisdiction?

Simon Gault

13/11/2015

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Do the LMAA Terms 2012 give tribunals enough powers to enforce their jurisdiction?

by

Simon Gault

Full member of the LMAA

OPINION OF ADVOCATE GENERAL WATHELETdelivered on 4 December 2014 (1) Case C-536/13 'Gazprom' OAO ..„

“……, what could an arbitral tribunal do, when it considers that thearbitration agreement from which it derives its jurisdiction has beenbreached by one of the parties, other than order that party to complywith the agreement and to submit to the arbitrators all its claimscovered by the agreement? An anti-suit injunction is therefore theonly effective remedy available to an arbitral tribunal in order to rulein favour of the party who considers that the arbitration agreementhas been breached by the other contracting party.”

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What can an arbitration tribunal do in that situation?• Determine its own jurisdiction under s. 30, AA 1996 either in an

award as to jurisdiction or in its award on the merits; see: s. 31(4), AA 1996

• Unless otherwise agreed, it can make a final award which:-• Declares that it has jurisdiction pursuant to an arbitration agreement• Orders the payment of damages for breach of an arbitration agreement• Enjoins a party from breaching an arbitration agreement• Orders specific performance of the arbitration agreementSee: s. 48.AA 1996, Krastner v Jason [2004] 2 Lloyd’s Rep 233 and Starlight Shipping Co & Another v Tai Ping Insurance Co Ltd Hubei Branch & Another [2008] 1 Lloyd’s Rep 230.

What can an arbitration tribunal not do in that situation?• It has no power to make an interlocutory injunction, unless the parties agree that

it should; see: s. 39, AA 1996.

• It has no power to enforce its final award.• In the UK, the award must be enforced by the Court and can be enforce in the same manner

as judgment or order of the Court to the same effect; see s. 66, AA 1996. Permission must be obtained by the Court and may be refused if the party against whom enforcement is sought shows that the tribunal lacked substantive jurisdiction.

• Overseas, the award may be enforced by the Courts of the country in which enforcement is sought under the New York Convention, but enforcement may be refused under Art V for lack of jurisdiction or on public policy grounds.

• It cannot bind third parties.

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Should the LMAA Terms be amended to give LMAA Tribunals power to make interlocutory injunctions?

• Is there a demand by users for such powers?

• Would arbitrators welcome such powers?

• Would there be problems in the exercise of such powers?• No power to act ex parte; see: s. 33, AA 1996

• Delay in the constitution of the tribunal

• Delay in reaching agreement between the members of the tribunal

• Delay in drafting, signing and publishing an award

• Are interlocutory anti-suit injunctions time critical?

Part E

Curricula Vitae

THE CHAIRMAN

SIMON GAULT Arbitrator & Mediator

Full Member of

the London

Maritime

Arbitrators Association

Member of the Baltic

Exchange

A Commercial man

Simon is a professional arbitrator and mediator, handling a wide

variety of international maritime cases. His arbitration practice

involves deciding disputes arising under time and voyage

charters, bills of lading contracts, sale and purchase contracts,

shipbuilding contracts, contracts for the sale of goods, marine

insurance policies, and agency and commission agreements. His

mediation practice involves assisting parties reach a negotiated

settlement in similar types of dispute.

Simon was also the Honorary Secretary of London Maritime

Arbitrators Association for over four years. In this capacity, he

advised on and lectured about a wide range of issues which arise

under the Arbitration Act 1996 He is a barrister with over thirty

years experience of arbitrating and litigating shipping cases. He

was counsel in a number of leading shipping or arbitration cases.

He appeared as counsel in a number of wreck inquiries. He

practiced from what is now Quadrant Chambers and served as

the deputy head of those chambers for a number of years. He is

now a door tenant of those chambers.

Before qualifying at the bar, he had 5 years experience in the

shipbuilding industry both in the UK and overseas. After retiring

from practice, he was appointed chairman of a shipping group,

and was responsible for instituting a programme of

rationalization of the group. He has over 11 years of judicial

experience as a recorder of the crown court, as deputy admiralty

registrar, and an assistant boundary commissioner. He is a

trustee of a number of charities including the Incorporated

Council of Law Reporting. He is the general editor of Marsden -

Collisions at Sea. He is a member of the Baltic Exchange. He is

also Visiting Professor of Practice at the Law School of Newcastle

University

Contact: Tel: +44-(0)1580-240771 Fax: +44-(0)1580 240931 Mob: +44-(0)7802-708132

E-mail: [email protected] Website: www.simongault.co.uk


http://www.simongault.co.uk/

CLARE AMBROSE

MA, LLM, FCIArb

Junior Counsel

Date called: 1992

Clare Ambrose practises as a barrister and arbitrator in commercial law with particular emphasis on international

trade, embracing shipping, commodities, energy, insurance and banking.

She took a first in law from Oxford University and then a first in the LLM from Cambridge University, and was

called to the bar in 1992. Since then she has practised at 20 Essex Street. She has appeared before the High Court,

Court of Appeal and arbitral tribunals including LMAA, LCIA, ICC and UNCITRAL tribunals. In 2007 she was

appointed a Deputy District Judge.

In recent years Clare has acquired extensive experience as a commercial arbitrator, with more than 70

appointments in international arbitrations. Clare has frequently been appointed as a chairman and sole arbitrator

as well as panel member. She has issued more than 40 awards, usually having drafted the award. Her appointments

have been made under a variety of arbitral rules, including those of the London Court of International Arbitration

(LCIA), the International Chamber of Commerce (ICC), the Singapore Chamber of Maritime Arbitration (SCMA)

and the London Maritime Arbitrators' Association (LMAA). She has also been appointed in numerous ad hoc

arbitrations.

Arbitral appointments have included matters relating to:

Commodities and international sales

Construction contracts and industrial design

Coal and iron trading

Distribution agreements

Music promotion

Oil trading and suppli agreements

Professional negligence

Shipping: charterparties & bills of lading

Ship building

Ship sale & purchase

Share purchase agreements

Technical services agreements

In addition to being a Fellow of the Chartered Institute of Arbitrators, she is a Member of the London Court of

International Arbitration; the London Maritime Arbitrators' Association (Supporting Member), and a Panel

Arbitrator for the Singapore Chamber of Maritime Arbitration. Her book, ?London Maritime Arbitration?, was

published in its third edition in 2009 and she widely lectures on arbitration issues.

She was appointed junior counsel to the Crown (B panel) in 2008 and has worked on a number of cases for the

UK Government including general commercial cases and also high value claims relating to VAT fraud.

Specialisations:

Banking

Insurance and reinsurance

Professional negligence

Shipping

Commodities

Oil and Gas

Carriage of Goods

Arbitration

Revenue

Principal Cases:

Arbitration

Transgrain Shipping BV v Deuilemar Shipping SPA (The ?Eleni P?) [2014] EWHC 4202 (Comm), [2015] 1

Lloyd?s Rep. 12 ? Charterparty, Arbitrators? appointment; challenge to jurisdiction; s67 Arbitration Act 1996; estoppel

MRI Trading AG v Erdenet Mining Corp LLC [2013] EWHC Civ 156

MRI Trading AG v Erdenet Mining Corp LLC [2012] EWHC 1988 (Comm)

Louis Dreyfus Commodities Kenya Ltd V Bolster Shipping Co Ltd (The "GiorgisCarras ") [2011] 1 Lloyd's

Rep.455 - Anti-suit injunction - bills of lading - arbitration clause

Koch Shipping Co v Richards Butler [2002] 2 All ER (Comm) 957 (solicitors' duties of confidentiality, conflict of

interest);

Fletamentos Maritimos v Effjohn [1997] 2 Lloyd's Rep 302 (arbitrators and bias);

The Voltaz [1997] 1 Lloyd's Rep 35 (arbitration clauses and time bars).

Banking

Czarnikow-Rionda Sugar Trading Inc v Standard Bank London [1999] 2 Lloyd's Rep 187 (letters of Credit, pre-

trial injunction).

Charities

Attorney General v Trustees of the British Museum [2005] Ch 397 (power of British Museum to make restitution

on moral grounds).

Commodities

MRI Trading AG v Erdenet Mining Corp LLC [2013] EWHC Civ 156

http://www.20essexst.com/case/mri-trading-ag-v-erdenet-mining-corp-llc-0

http://www.20essexst.com/case/mri-trading-ag-v-erdenet-mining-corp-llc

http://www.20essexst.com/case/mri-trading-ag-v-erdenet-mining-corp-llc-0

MRI Trading AG v Erdenet Mining Corp LLC [2012] EWHC 1988 (Comm)

Louis Dreyfus Trading v Reliance Trading [2004] 2 Lloyd's Rep 243 (Sale of Goods, damages);

Bem Dis a Turk Ticaret v International Agri Trade Co Ltd [1998] 1 Lloyd's Rep 416 (sale of goods, GAFTA

default clause).

Conflict of Laws

Louis Dreyfus Commodities Kenya Ltd V Bolster Shipping Co Ltd (The "Giorgis Carras ") [2011] 1 Lloyd's


Bouygues Offshore SA v Caspian Shipping Co (No.2) and (No.3) [1997] 2 Lloyd's Rep 485 and [1997] 2 Lloyd's Rep

493, [1998] 2 Lloyd's Rep.461 (anti-suit injunctions, jurisdiction clauses and himalaya clauses, service of third party notices out

of the jurisdiction);

Ultisol Transport Co v Bouygues Offshore SA (No.1) and (No.5) [1996] 2 Lloyd's Rep 140 and [1997 2 Lloyd's Rep

533, (anti-suit injunctions, jurisdiction clauses).

Shipping/Admiralty

Transgrain Shipping BV v Deuilemar Shipping SPA (The ?Eleni P?) [2014] EWHC 4202 (Comm), [2015] 1

Lloyd?s Rep. 12 ? Charterparty, Arbitrators? appointment; challenge to jurisdiction; s67 Arbitration Act 1996; estoppel

Louis Dreyfus Commodities Kenya Ltd V Bolster Shipping Co Ltd (The "Giorgis Carras ") [2011] 1 Lloyd's


Glencore Grain Ltd v Flacker Shipping Inc, The Mass Glory [2002] 2 Lloyd's Rep 144 (voyage charter,

commencement of laytime);

Whistler v Kawasaki Kisen Kaisha Ltd,The Hill Harmony [1998] 2 Lloyd's Rep 367 (employment and navigation of

a ship under time charterparties);

The Yuta Bondarovskaya [1998] 2 Lloyd's Rep. 357 (time charterers' authority to contract on behalf of owners).

EU/Public Law

Headshore Holdings Ltd v HMRC; Warefine Solutions Ltd v HMRC; Rigcharm Ltd v HMRC - Appeals before

the First Tier Tax Tribunal regarding Missing Trader Intra Community VAT fraud.

Arbitration Appointments LCIA

Numerous appointments under contracts for sale of oil, coal, steel and other metals and metal ores (acting as party

appointed tribunal member, and also as LCIA appointed tribunal member, sole arbitrator or tribunal chairman)

Party-appointed tribunal member: dispute between parties to a long term supply contract for cocoa and coffee beans from

Cote d?Ivoire

LCIA appointed tribunal member under share sale agreement for shares in a Russian energy company

http://www.20essexst.com/case/mri-trading-ag-v-erdenet-mining-corp-llc

Sole arbitrator appointed by LCIA under services agreement for ship management and investment advice

Sole arbitrator appointed by LCIA under contract for design and supply of a chemical plant constructed in the UAE.

Sole arbitrator appointed by LCIA under contract for an opera singer to give a televised concert

Arbitration Appointments ICC

ICC appointed tribunal chairman under services agreement for oil and gas plants in Libya

Party nominated tribunal member under contract for sale of coal

Party nominated tribunal member under dispute between pharmaceutical companies

ICC nominated sole member under dispute between two banks relating to an international money transfer system

LMAA arbitration appointments

Numerous appointments under charterparties, bills of lading and contracts of affreightment (acting usually as party appointed

tribunal member or as third arbitrator).

Party appointed tribunal member in dispute between a European yard and the buyer involving a $20 million luxury motor

yacht

Arbitration appointments/ Ad hoc and other institutions

Several appointments arising out of international sales, including sales of oil, coal, cement and steel

Sole arbitrator in dispute between surveyor and client involving allegations of professional negligence

Tribunal chairman in dispute under distribution agreement between Russian pharmaceutical company and English

manufacturer

Tribunal chairman in ?40 million claim under a shipbuilding contract to build a vessel for a Scandinavian buyer

Party appointed arbitrator under DIFC/LCIA rules under contract for sale of galvanised steel

Party appointed arbitrator under DIAC rules under contract for building of semi-submersible rigs for Dubai state entity

Education and Career:

Following school Clare spent a year at the Université François Rabelais in Tours, becoming fluent in French. She went on to

obtain a first class degree in Jurisprudence at Oxford (Somerville College, scholar) and also a first class LLM at Cambridge

(Queens' College, Foundation scholar) before being called to the Bar in 1992.

Publications:

London Maritime Arbitration (3rd Edition, Informa, 2009, co-written with Karen Maxwell and Angharad Parry).

Articles include:

"Arbitration Review 2008" LMCLQ Maritime and Commercial Law Yearbook 2009

"Arbitration Review 2007" LMCLQ Maritime and Commercial Law Yearbook 2008

"Force Majeure in International Contracts" [2003] Business Law International 234

"Arbitration and the Free Movement of Judgments" [2003] vol 19 Arbitration International 3

"Can Anti-suit Injunctions Survive European Community Law" [2003] 52 ICLQ 401

"When can a third party enforce an arbitration clause?" [2001] JBL 415.

"English Arbitration Law 2000" [2001] LMCLQ 476

"Arbitration and the Human Rights Act" [2000] LMCLQ 468

Appointments and Society Memberships:

Fellow of the Chartered Institute of Arbitrators

Co-founder of the LCIA Young International Arbitration Group

LMAA Supporting Member

LCLCBA

COMBAR

SCMA panel member

Panel member of KLRCA

Lectures and Teaching:

Between 1999 and 2002 she was senior tutor in law at Somerville College in Oxford and lectured in International Trade for

the Law Faculty of Oxford University. She continued to give lectures for Oxford University until 2005. In 2002 she was a

visiting fellow at the European University Institute in Florence, when she published articles on anti-suit injunctions and the

application of European Community jurisdictional rules to arbitration. Clare now frequently gives talks and seminars, mainly

in the area of arbitration.

Quotes:

"A frequent arbitrator in commodities cases, who excels in oil and gas disputes." (Legal 500 2014, Commodities)

?very responsive and user-friendly' (Legal 500 2013, Commodities)

"...the ?very effective' Clare Ambrose has ?an excellent tactical sense'" (Legal 500 2012, Commodities)

"Clare Ambrose is 'very able, gets into the detail of disputes and is very pleasant'." (Legal 500 2011, Commodities)





London & Singapore

Vasanti Selvaratnam QC practices in all aspects of international commercial litigation and arbitration, regularly handling force majeure disputes, jurisdiction issues and all forms of interim urgent relief, including freezing orders and anti-suit injunctions. She specialises in large scale commercial cases both in court and in arbitration, including dry shipping and commodity disputes, related documentary credit issues, wet shipping, insurance, banking, conflict of laws and civil fraud. She is particularly noted for her user friendly “hands on” approach to cases and for her ability quickly to get to grips with disputes raising complex factual and technical issues which require a sound grasp of expert evidence and mastery of detail.

Reported leading cases include: The Starsin (2003, House of Lords, commercial litigation, shipping); Arkin v Borchard Lines and ors (2003/04, Court of Appeal, commercial litigation; shipping; competition law); Noga v Abacha Defendants (2007, commercial litigation, civil fraud), The Wadi Sudr (2009/10, Court of Appeal, commercial litigation, EU jurisdiction dispute post West Tankers); Madoff Securities International Ltd (in liquidation) v Yacht Bull Corporation (2010, Conflict of laws, inter-relationship between EC Insolvency Regulation and Judgments Regulation) and BNP Paribas SA v (1) Open Joint Stock Co Russian Machines (2) Joint Stock Asset Management Co Ingosstrakh-Investments (2012, Court of Appeal, a leading case on non–contractual anti-suit injunctions) and Emirates Trading Agency v PMEPL (2014, friendly discussions clause a condition precedent to right to commence arbitration).

Other recent noteworthy cases include: Nakanishi Marine v Gora Shipping and Attica Finance [2012] EWHC 3383 (Comm) which considers the effects of a tripartite subordination agreement on the rights of a junior lender as against the borrower and guarantor and RBS v Fal Oil Co Ltd and ors [2012] EWHC 3628 (Comm) which is a leading case on interim relief under section 25 CJJA 1982.

Vasanti Selvaratnam’s commercial practice embraces all aspects of: � International trade, commodities, shipping and transport, including:

� Full range of charterparty, bill of lading and international sale of goods disputes

� Shipbuilding and refund guarantee disputes � Ship sale and purchase � Marine insurance � Salvage and collision � Wreck removal � Pollution � Limitation of liability � CMR � Jurisdiction disputes

� International commercial litigation, including: � Energy � International Sale of Goods � Documentary credits � Enforceability of guarantees � Banking and finance � Insurance � Conflict of laws, jurisdiction disputes � All forms of interlocutory relief, including worldwide freezing

orders and anti-suit injunctions � International commercial arbitration under the rules of all major

institutions � Civil fraud

Particular specialism in cases requiring technical expertise. Vasanti is recommended as a leading silk for international arbitration, shipping and commodities in the leading Legal Directories and is also noted for being a “poised and highly measured advocate”.

‘She has a very pleasant manner before tribunals and engages with them well. She is a forceful advocate who is not afraid to make difficult arguments and doesn’t let herself be bullied by tribunals. She is a pleasure to work with.’ (Chambers & Partners UK Bar 2016)

Vasanti Selvaratnam QCJoint Head of Stone Chambers

Call: 1983QC: 2001

Recorder Arbitrator Accredited Mediator

LLB (Hons), LLM (First Class), King’s College, London

[email protected]





London & Singapore

‘She is incredibly pragmatic, tactical in terms of the advice she gives and very eloquent.’ (Chambers & Partners UK Bar 2016)

‘Very thorough and quietly effective.’ (Legal 500 2015)

‘A tenacious advocate, and it is rare to get someone of her seniority who is so user-friendly.’ (Legal 500 2015)

‘Really gets stuck into a case; she voraciously reads all the documents and is a forceful advocate.’ (Legal 500 2015)

‘She is one of those QCs who does not show arrogance.’ (Chambers & Partners UK Bar 2015)

‘She is very calm and steady.’ (Chambers & Partners UK Bar 2015)

‘Very proactive and hands-on, and will not leave any stone unturned in case-handling.’ (Legal 500 2014)

‘Very hands on and friendly, but with a tenacious attitude.’ (Legal 500 2014)

‘An absolute pleasure to work with; she is thorough, articulate and easily gets into the detail.’ (Legal 500 2014)

‘She is excellent, as she’s intelligent, responsive and very approachable. Her advice is commercial and very well thought out.’ (Chambers & Partners UK Bar 2014)

‘Commercially astute’ (Legal 500 2013)

Stone Chambers’ Vasanti Selvaratnam QC is ‘a leading silk for matters requiring deep technical expertise in commodity trading’ (Legal 500 2013)

Vasanti Selvaratnam QC, a ‘fantastically responsive’ member of Stone Chambers, handles a wide range of commercial arbitration. She has recently acted in LCIA and ICC arbitrations, and is also able to sit as an arbitrator. Instructing solicitors note that she ‘ensures that she works as part of the team,’ and consider her advice to be ‘commercial and practical.’ (Chambers & Partners UK Bar 2013)

Vasanti Selvaratnam QC’s skills in cross-examinations are highly rated: ‘She comes across as incredibly calm and considered but leaves a trail of destruction in her wake.’ (Chambers & Partners UK Bar 2012)

Vasanti also regularly accepts appointments to act as arbitrator in a wide variety of commercial disputes reflecting her broad commercial practice under all major forms of institutional rules, including ICC, LCIA, SIAC, LMAA and LOF. Most recently, Vasanti was chair of an ICC Tribunal on a share sale and purchase dispute. Vasanti has also been authorised by Lloyds to sit as an arbitrator in LOF matters with effect from 1 January 2014.

Cases of interest:

PMEPL v ETA (2014): Vasanti is retained in this multi-million dollar ICC arbitration concerning a Long Term Contract for the supply of iron ore. Recent important decision by Teare J as to the enforceability of a multi-tiered clause providing for mandatory friendly discussions before invoking arbitration: [2014] EWHC 2014 (Comm).

OC (2014): LMAA arbitration arising out of the grounding of the OC in Chile on an uncharted rock and her eventual salvage, raising issues of deviation, unseaworthiness, negligent navigation, due diligence, tonnage limitation and recoverability of general average under bills of lading governed variously by the Hague Rules and the Hamburg Rules.

MSC KALINA (2014): Assessment of damages for loss of use following a collision where one vessel in the fleet is out of service during repair and commitments are met by other vessels in the fleet; whether demise charter hire payable in respect of the damaged vessel is claimable.

ICC Arbitration (2014) Complex multi-million dollar construction dispute raising issues of proper parties in the light of an assignment, repudiatory breach, applications for interim relief and computation of damages.

Al Safat (2014): Anti suit injunction against Kuwaiti insurers in respect of commencement of proceedings in non-contractual forum raising issues of enforceability of the forum selection clause in the bill of lading as a matter of Kuwaiti law and effect of Article 23 of the Judgments Regulation.





London & Singapore

Stolt Kestrel [2014] EWHC 1731 (Adm): leading case on mandatory extensions of time under section 190 Merchant Shipping Act 1995. Pending appeal.

8 linked LMAA arbitrations (2014): 8 CPs on an amended Barecon form raising issues as to whether a repudiatory breach brings about automatic termination by way of exception to the White and Carter principle and issues of equitable set off in relation to hire and damages across the fleet.

Algoma Discovery (2013): Commercial court litigation in a general average and salvage dispute raising issues of unseaworthiness, due diligence and German law.

Re K: (2012): Breach of trust case arising out of Yukos related criminal proceedings in Russia (2012 and ongoing): instructed on behalf of a Russian international banker in connection with a claim to recover loss caused by breach of fiduciary duty by a co-shareholder and trustee, raising complex issues of share valuation.

Shepherds Select Fund and anor v Leach and ors (Isle of Man, Chancery Division) – Major litigation in the Isle of Man relating to the running of an Experienced Investor Fund investing in viaticals in the United States. Complex issues of foreign law and taxation as well as quantum. Instructed by Appleby on behalf of the 3rd Defendant.

Nakanishi Marine v Gora Shipping and Attica Finance [2012] EWHC 3383 (Comm): issues of construction relating to a tripartite Deed of Co-Ordination entered into between junior and senior lenders and the borrower, raising questions as to the genuineness of the senior loan and leading to the obtaining by Nakanishi of a worldwide freezing order and an anti suit injunction following attempts by the senior lender to sell the vessel in Panama.

Bankhaus Wolbern & Co (AG & Co KG) (2) Vision 93 Konserveirungs Und Vermogensverwaltun GS GMBH & Co KG v China Construction Bank Corporation, Zhejiang Branch [2012] EWHC 3285 (Comm) - jurisdiction challenge by a Chinese Bank in the context of a non exclusive English jurisdiction clause raising issues as the applicability of Art 23 Judgments Regulation and relevance of a Chinese Court Order prohibiting payment by the Chinese Bank under a refund guarantee.

Re “Sharjah Pride” and “Sea Lion” [2012] EWHC 3628 (Comm) - worldwide freezing and disclosure orders obtained on behalf of RBS under section 25 Civil Jurisdiction and Judgments Act 1982 in support of proceedings in Sharjah in a case that will become the leading decision on the links to the jurisdiction which must be shown to justify section 25 relief.

Aveng (Africa) Ltd v Government of the Gabonese Republic [2012] All ER (D) 150 - enforcement of an arbitration award against a sovereign debtor.

ZH 1006 (2012): jurisdiction challenge by a Chinese Bank in the context of a non exclusive English jurisdiction clause raising issues as the applicability of Art 23 Judgments Regulation and relevance of a Chinese Court Order prohibiting payment by the Chinese Bank under a refund guarantee.

BS (2012): LMAA commercial arbitration and related court proceedings concerning a freezing injunction and priorities as between the lending bank and a potential award creditor.

BNP Paribas SA v (1) Open Joint Stock Co Russian Machines (2) Joint Stock Asset Management Co Ingosstrakh-Investments [2011] EWHC 308 (Comm) [2012] 1 Lloyds Rep 649 (CA) - anti suit injunction and related jurisdiction issues in quasi contractual/non contractual case involving London arbitration and Russian proceedings brought by a non party under a Russian statute.

Re: 22 Confidential arbitrations (2012): Jurisdiction issues concerning whether assignor or assignee had title to commence arbitration and serve notices of termination and notices of demand under a guarantee following a deed of assignment executed in favour of the financing bank.

Joint Stock Asset Management Co Ingosstrakh-Investments v BNP Paribas [2012] 1 Lloyd’s Rep 649 - anti suit injunction and related jurisdiction issues in quasi contractual/non contractual case involving London arbitration and Russian proceedings brought by a non party under a Russian statute.

LCIA Arbitration (2010) - instructed by Norton Rose on behalf of a global GDS distributor in a multi-million dollar dispute arising out of premature termination of exclusive distribution rights raising issues as to the ability of a party to rely on an entire agreement clause where the conduct of that party gives rise to an estoppel and/or waiver.





London & Singapore

Madoff Securities International Ltd (in liquidation) v Yacht Bull Corporation [2010] EWHC 133 (Ch) - instructed on behalf of French company in multi-jurisdictional conflict with Madoff entities regarding title to the yacht Bull. The recent and important decision of the Chancellor considers the interrelationship between the Judgments Convention and the Insolvency Regulation in the context of a claim by the liquidator of MSIL to assets over which title was disputed. Ongoing action in France and ancillary proceedings in the Commercial Court under section 25 Civil Jurisdiction and Judgments Act 1982 in order to prevent dissipation of the proceeds of the yacht pending judgment in the underlying fraud action.

The Wadi Sudr [2009] EWCA Civ 1397; [2010] 1 Lloyd’s Rep. 193; [2010] ILPr 10; The Times, February 8, 2010 - declaratory relief and injunction sought to restrain proceedings in Spain in support of London arbitration. First case to grapple with the issue of whether a judgment obtained in Spain on the issue of incorporation of a London arbitration clause into the bill of lading has to be recognised by the English Court.

The Hijaz (2010); The Ibn Hayyan (2010) - anti suit injunction, Kuwait, raising issues as the validity of the exercise of an option in favour of English jurisdiction post dispute.

Rimpacific v Daehan Shipbuilding (2009) EWHC 2941 - anti suit injunction, Korea, raising issues of separability of a jurisdiction agreement, ostensible authority to enter into a guarantee and proper law.

Banga (2008-2009) - multi-party Commercial Court action arising out of alleged vapour phase contamination of gasoil cargo raising technical issues as to mechanism, seaworthiness and due diligence.

Gerrards Cross Tunnel Collapse (2007) - acted on behalf of Tesco in connection with claims arising from collapse of tunnel at Gerrards Cross causing closure of railway line for 51 days.

Compagnie Noga v The Russian Federation (New York seat, Russian and English law) - instructed by claimants direct in multi-million dollar dispute against the government of the Russian Federation. Stockholm Chamber of Commerce arbitration held in New York.

Compagnie Noga D’Importation et D’Exportation SA v The Abacha Defendants, ANZ Bank and others - instructed on behalf of the claimants in multi billion dollar civil fraud action against numerous defendants. Worldwide tracing and freezing injunctions in support of Noga’s claim against the Abacha defendants and a well known bank arising out of their dealings with funds in which Noga claim a beneficial interest; whether Noga had an equitable proprietary interest in the bills of exchange and their proceeds under their contract with the Russian Federation; whether individuals in the governments of Russia and/or Nigeria acted fraudulently. Raises issues of Swiss, Russian and Nigerian law, banking practice, money laundering and forensic accountancy.

Huntsman v Petroplus - multi-million dollar dispute under an agreement for the supply of naphtha and LPG raising issues of construction (including whether the effect of an entire agreement clause is to exclude implied terms under the Sale of Goods Act 1979) and technical questions as to the cause of mercury contamination and whether it was such as to render the products unsatisfactory or unfit for purpose).

Starsin (House of Lords) [2004] 1 AC 715 - leading case on the identity of the contractual carrier under a bill of lading, the construction and effect of Himalaya Clauses and liability in tort. Consideration of the impact of UCP 500 on the importance to be attached to the form of signature when identifying the contractual carrier in a bill of lading.

Arkin v Borchard and ors [2003] 2 Lloyd’s Rep 225; [2004] 1 Lloyd’s Rep 88, 636, [2005] EWCA Civ 655 - Commercial Court litigation raising important competition law issues in the context of the activities of two liner shipping conferences; claim for damages based on alleged breaches of Articles 81 and 82 of the EC Treaty. First case under English law in which damages were sought under Articles 81 and 82 in respect of alleged predatory pricing by the members of two liner conferences during a price war in 1991.

Now the leading case on the liability of a professional funder for the costs of successful defendants where the claimant is impecunious and the incidence of costs as between defendants and part 20 Defendants where the claimant is impecunious.

Metro litigation (1999/2000) - multi-party litigation involving conflict of laws, title to blended/commingled oil and priorities as between conflicting proprietary claims.

Memberships:

Other Professional Affiliations and Memberships: COMBAR, Chancery Bar Association, LCLBA, BMLA, LMAA, LCIA, IBA, London Shipping Law Centre (Head of education sub-committee), European Circuit, Bar European Group; Law Society European Group; Institute of Advanced Legal Studies, ICC’s Banking and Finance committee.

136310908.1

ROBERT GAY Robert Gay is a Legal Director with Hill Dickinson LLP. He combines the highest academic expertise in shipping and marine/energy insurance law with practical experience in handling and advising on dry shipping and insurance disputes. He has taught as a Visiting Lecturer in Law at University College London. He is a Supporting Member of the LMAA, a Freeman of the Worshipful Company of Arbitrators, and a member of the Education and Events Committee of the London Shipping Law Centre. His publications include:

“Damages in Addition to Demurrage” Lloyd’s Maritime and Commercial Law Quarterly, 2004.

A survey of salvage law (with Rhys Clift) in the Tulane Law Review 2005. “Dangerous Cargo and ‘Legally Dangerous’ Cargo” in DR Thomas (ed) The Evolving Law

and Practice of Voyage Charterparties, 2009.

“Safe port undertakings: named ports, agreed areas, and avoiding obvious dangers” in Lloyd’s Maritime and Commercial Law Quarterly, 2010.

Shelltime 4 and ShellLNGTime, a detailed (115 pages) commentary published by Intertanko in November 2010.

“Unsafe berth obligations, repairs to a berth, and exceptions to laytime” (casenote on The Vine), Lloyd’s Maritime and Commercial Law Quarterly, 2011.

“’Tbook approved’ and its Consequences”, (casenote on The Rowan) in Lloyd’s Maritime

and Commercial Law Quarterly, November 2011.

“Excluding Consequential Damages” in B Soyer & A Tettenborn (eds) Offshore Contracts and Offshore Liabilities, 2014.

. Robert is an acknowledged expert on BIMCO’s Supplytime form. Robert is also an expert on tanker charterparties, especially time charters, but also issues including laytime and demurrage. He is a member of the Documentary Committee of Intertanko, which is responsible for keeping Intertanko’s recommended clauses under review and drafting fresh clauses as required. Robert’s work in marine and energy insurance has mostly been for the assured. However, he assisted with the drafting of the International Hull Clauses for the London Market, and has advised P&I insurers on policy wordings. He has also given expert evidence on English marine insurance law for the Multi-Member Court of First Instance in Piraeus. Other areas where Robert has detailed practical experience include:-

FFA’s Shipbuilding contracts

MOA’s for purchase/sale of ships

107206868-1

Contracts for the hire of jack-up rigs, drillships, etc.

Construction contracts, including offshore construction

He has considerable experience with English proceedings dealing with issues as to foreign law or relating to proceedings elsewhere in the world. .

the enforcement of london arbitration agreements€¦ · chairman’s tel: 020 7936 3418 ~...

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