We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
Wednesday, 02 April 14
CHINA: ARBITRATION CLAUSES IN BILLS OF LADING UNDER CHINESE LEGAL PRACTICE - SKULD
 KNOWLEDGE TO ELEVATE
Successful incorporation of a charterparty arbitration clause into the bills of lading is not a straight forward matter under China jurisprudence and recently a Chinese maritime court dismissed the owners' motion to refer the case to arbitration, because it was held that the C/P arbitration clause incorporated into the B/L was not effective. Details of the matter are as follows. Key points following the legal decision are:
- Although the said B/L recorded on the front page that it was: "to be used with charterparty", there was no express statement in the bill terms for incorporating the arbitration clause from the C/P.
- The standard incorporation clause in the back page of the B/L could not constitute a valid incorporation of the arbitration clause under Chinese law and practice.
- If any C/P terms are to be recognised as incorporated then they would be those of the voyage charter to which the cargo receiver was a party - not the head time C/P. This is because the time C/P is in the nature of being primarily a leasing contract .
Facts of this case
The vessel owners concluded a time C/P as with a charterer. One of the rider clauses provided that English law shall be applicable, and a further clause provided that any dispute arising from the C/P shall be submitted to arbitration at the LMAA.
As part of her charter employment, the vessel carried a cargo of iron ore fines from South America to China. According to the B/L, the shipper South American and the receiver was a Chinese Steel Mill.
While on route the vessel was involved in collision with another vessel. The owners appointed salvors to conduct salvage, and concluded a LOF contract. General average was declared. The salvage was successful, and the Chinese Steel Mill (through its insurers) had to provide general average security to the vessel.
The general average apportionment of salvage costs to cargo was significant, and the Chinese Steel Mill commenced proceedings in China for an indemnity against the ship-owner. The owners raised objection to jurisdiction on the basis that the provisions of the time C/P, including the arbitration clause had been incorporated into the B/L, and thus was binding upon the Steel Mill. The expert opinion of English lawyers was put forward to confirm that the terms of the C/P were successfully incorporated in to the bills of lading, including the arbitration clause.
First instance trial before the Chinese Maritime Court
The Maritime Court dismissed the objection to jurisdiction for the following reasons:
- The case was about compensation of ship collision / general average salvage rewards. Hence, the case fell into the scope of the contract of the carriage of goods by sea.
- Although the said B/L recorded on the front page that: "to be used with charterparty", there was no express statement in the bill terms for incorporating the arbitration clause in the C/P. The standard incorporation clause in the back page of the B/L cannot constitute valid incorporation.
- Meanwhile, the C/P which the owner claimed was to be incorporated into the B/L was a time C/P between the owner and the charterer only. The C/P arbitration clause was only there for resolving the disputes arising from the leasing of the vessel. It was not an arbitration clause for purpose of carriage of goods by sea under the voyage C/P.
- The local Maritime Court, as the nearest court at the port of the destination of the said carriage contract, should have jurisdiction over this case.
Appeal judgment High People's Court
The owners then appealed to the High People's Court and the appeal court dismissed the objection to jurisdiction for reason that:
- Although it is stated on the face of the involved B/L that the said B/L should be used with the C/P, the said C/P to be used with B/L shall be the voyage C/P and not the time C/P to which the owner was a party.
- However, the C/P provided by the owners was a time C/P and there was also no record on the face of the B/L regarding the specific C/P concerned and no express acceptance to have the C/P arbitration clause incorporated.
Observation on this case and comment
Chinese courts hold a stringent view concerning the issue of incorporating the C/P arbitration clause into the B/L. In this case, a key issued appeared to be that the C/P terms sought to be incorporated came from the time C/P, instead of a voyage C/P.
It should also be noted that in 2004 the Qingdao Maritime Court also held that a time C/P is primarily a vessel leasing contract, and although it also has some clauses regarding transportation of cargo it is still primary a leasing contract which is very different from voyage C/P.
The Qingdao Maritime Court continued to say that the B/L relationship is different to the time C/P legal relationship, and because of the rooted difference in this respect, the time C/P arbitration clause cannot be incorporated into the B/L.
Although China is not a case law country, the reasoning of Chinese courts in this regard should be paid attention to for handling of other similar cases.
By Philip Peng
Hai Tong & Partners, Beijing
Source: Skuld / Hellenic Shipping
Views and opinions / conclusion expressed herein are personal views of the authors and not that of COALspot.com.
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Monday, 12 May 14
TAIPOWER TO IMPORT AROUND 1 MMT OF SUB-BITUMINOUS COAL DURING AUGUST 2014 THROUGH NOVEMBER 2014
COALspot.com - Taiwan Power Company intends to procure 1.050 million tons of sub-bituminous coal for Taipower thermal power plant through open t ...
Monday, 12 May 14
DRY BULK MARKET IS STILL STRUGGLING TO FIND FIRM FOOTING
COALspot.com: The freight market continued to be weak and the BDI closed slightly lower at 997 points or fell 1.96 pct week on week. The cape in ...
Friday, 09 May 14
RBCT SHIPPED 5.4 MMT OF COAL IN APRIL
COALspot.com: South Africa's Richards Bay Coal Terminal (RBCT) the single largest coal export terminal in the world, shipped 5.45 million to ...
Friday, 09 May 14
DRY BULK MARKET: BANKRUPTCY TONNAGE UNLEASHED
Drewry’s latest Dry Bulk Forecaster saw freight rates on most routes declined in 2014’s first quarter as the previous quarter’ ...
Friday, 09 May 14
UNITED STATES COAL PRODUCTION SLIGHTLY SLIDES TO 82.4 MMST IN APRIL
COALspot.com – United States the world's second largest coal producer, produced approximately 18.8 million short tons (mmst) of coal i ...
|
|
|
Showing 3711 to 3715 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Salva Resources Pvt Ltd - India
- Simpson Spence & Young - Indonesia
- Tamil Nadu electricity Board
- Aboitiz Power Corporation - Philippines
- Directorate General of MIneral and Coal - Indonesia
- Petron Corporation, Philippines
- Power Finance Corporation Ltd., India
- Kumho Petrochemical, South Korea
- Xindia Steels Limited - India
- Toyota Tsusho Corporation, Japan
- The State Trading Corporation of India Ltd
- The Treasury - Australian Government
- Bank of Tokyo Mitsubishi UFJ Ltd
- Orica Australia Pty. Ltd.
- Bharathi Cement Corporation - India
- Electricity Authority, New Zealand
- Australian Coal Association
- Agrawal Coal Company - India
- Trasteel International SA, Italy
- Neyveli Lignite Corporation Ltd, - India
- CIMB Investment Bank - Malaysia
- Therma Luzon, Inc, Philippines
- Rio Tinto Coal - Australia
- Mintek Dendrill Indonesia
- Commonwealth Bank - Australia
- Merrill Lynch Commodities Europe
- Sakthi Sugars Limited - India
- Siam City Cement - Thailand
- Bahari Cakrawala Sebuku - Indonesia
- Krishnapatnam Port Company Ltd. - India
- Leighton Contractors Pty Ltd - Australia
- Sarangani Energy Corporation, Philippines
- San Jose City I Power Corp, Philippines
- Bayan Resources Tbk. - Indonesia
- Minerals Council of Australia
- Kalimantan Lumbung Energi - Indonesia
- Ministry of Finance - Indonesia
- Intertek Mineral Services - Indonesia
- Carbofer General Trading SA - India
- OPG Power Generation Pvt Ltd - India
- Barasentosa Lestari - Indonesia
- Independent Power Producers Association of India
- Economic Council, Georgia
- IHS Mccloskey Coal Group - USA
- Standard Chartered Bank - UAE
- Cement Manufacturers Association - India
- White Energy Company Limited
- Dalmia Cement Bharat India
- Vedanta Resources Plc - India
- Parliament of New Zealand
- Australian Commodity Traders Exchange
- Mjunction Services Limited - India
- Orica Mining Services - Indonesia
- Global Coal Blending Company Limited - Australia
- India Bulls Power Limited - India
- Central Electricity Authority - India
- Oldendorff Carriers - Singapore
- Meralco Power Generation, Philippines
- Bangladesh Power Developement Board
- Directorate Of Revenue Intelligence - India
- Pendopo Energi Batubara - Indonesia
- New Zealand Coal & Carbon
- European Bulk Services B.V. - Netherlands
- Uttam Galva Steels Limited - India
- PTC India Limited - India
- Chamber of Mines of South Africa
- Bhatia International Limited - India
- Anglo American - United Kingdom
- Videocon Industries ltd - India
- Global Business Power Corporation, Philippines
- Planning Commission, India
- Energy Development Corp, Philippines
- Karaikal Port Pvt Ltd - India
- Miang Besar Coal Terminal - Indonesia
- Bukit Makmur.PT - Indonesia
- Kideco Jaya Agung - Indonesia
- Electricity Generating Authority of Thailand
- Larsen & Toubro Limited - India
- Gujarat Sidhee Cement - India
- Ind-Barath Power Infra Limited - India
- PNOC Exploration Corporation - Philippines
- Bulk Trading Sa - Switzerland
- Indogreen Group - Indonesia
- Ministry of Transport, Egypt
- Alfred C Toepfer International GmbH - Germany
- Energy Link Ltd, New Zealand
- Siam City Cement PLC, Thailand
- Lanco Infratech Ltd - India
- Attock Cement Pakistan Limited
- Thai Mozambique Logistica
- GN Power Mariveles Coal Plant, Philippines
- MS Steel International - UAE
- Meenaskhi Energy Private Limited - India
- Romanian Commodities Exchange
- Kaltim Prima Coal - Indonesia
- Maharashtra Electricity Regulatory Commission - India
- Singapore Mercantile Exchange
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Indian Oil Corporation Limited
- Georgia Ports Authority, United States
- Jindal Steel & Power Ltd - India
- Jaiprakash Power Ventures ltd
- Aditya Birla Group - India
- South Luzon Thermal Energy Corporation
- ASAPP Information Group - India
- Eastern Energy - Thailand
- Price Waterhouse Coopers - Russia
- Ceylon Electricity Board - Sri Lanka
- Global Green Power PLC Corporation, Philippines
- Jorong Barutama Greston.PT - Indonesia
- Heidelberg Cement - Germany
- Coal and Oil Company - UAE
- Bhoruka Overseas - Indonesia
- Indonesian Coal Mining Association
- Savvy Resources Ltd - HongKong
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Wood Mackenzie - Singapore
- Chettinad Cement Corporation Ltd - India
- Rashtriya Ispat Nigam Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Indian Energy Exchange, India
- SMC Global Power, Philippines
- Latin American Coal - Colombia
- Mercator Lines Limited - India
- Globalindo Alam Lestari - Indonesia
- GAC Shipping (India) Pvt Ltd
- Thiess Contractors Indonesia
- Coastal Gujarat Power Limited - India
- Bukit Baiduri Energy - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Asmin Koalindo Tuhup - Indonesia
- Samtan Co., Ltd - South Korea
- PowerSource Philippines DevCo
- Metalloyd Limited - United Kingdom
- Vizag Seaport Private Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Sinarmas Energy and Mining - Indonesia
- Holcim Trading Pte Ltd - Singapore
- Antam Resourcindo - Indonesia
- Edison Trading Spa - Italy
- LBH Netherlands Bv - Netherlands
- Ambuja Cements Ltd - India
- GVK Power & Infra Limited - India
- Semirara Mining Corp, Philippines
- Semirara Mining and Power Corporation, Philippines
- Billiton Holdings Pty Ltd - Australia
- Kepco SPC Power Corporation, Philippines
- Sical Logistics Limited - India
- Madhucon Powers Ltd - India
- Star Paper Mills Limited - India
- Sindya Power Generating Company Private Ltd
- Borneo Indobara - Indonesia
- Essar Steel Hazira Ltd - India
- Coalindo Energy - Indonesia
- Manunggal Multi Energi - Indonesia
- International Coal Ventures Pvt Ltd - India
- Posco Energy - South Korea
- GMR Energy Limited - India
- Bhushan Steel Limited - India
- Marubeni Corporation - India
- Medco Energi Mining Internasional
- Riau Bara Harum - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Port Waratah Coal Services - Australia
- Indika Energy - Indonesia
- Kapuas Tunggal Persada - Indonesia
- Maheswari Brothers Coal Limited - India
- Iligan Light & Power Inc, Philippines
- Deloitte Consulting - India
- Binh Thuan Hamico - Vietnam
- Indo Tambangraya Megah - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Wilmar Investment Holdings
- Mercuria Energy - Indonesia
- McConnell Dowell - Australia
- Offshore Bulk Terminal Pte Ltd, Singapore
- Gujarat Mineral Development Corp Ltd - India
- Sree Jayajothi Cements Limited - India
- Straits Asia Resources Limited - Singapore
- Vijayanagar Sugar Pvt Ltd - India
- Formosa Plastics Group - Taiwan
- Makarim & Taira - Indonesia
- London Commodity Brokers - England
- Baramulti Group, Indonesia
- SN Aboitiz Power Inc, Philippines
- Gujarat Electricity Regulatory Commission - India
- Sojitz Corporation - Japan
- Kohat Cement Company Ltd. - Pakistan
- Renaissance Capital - South Africa
- Goldman Sachs - Singapore
- Central Java Power - Indonesia
- Malabar Cements Ltd - India
- TeaM Sual Corporation - Philippines
- Interocean Group of Companies - India
- PetroVietnam Power Coal Import and Supply Company
- Parry Sugars Refinery, India
- Grasim Industreis Ltd - India
- Bukit Asam (Persero) Tbk - Indonesia
- ICICI Bank Limited - India
- The University of Queensland
- CNBM International Corporation - China
- Timah Investasi Mineral - Indoneisa
- Ministry of Mines - Canada
- Africa Commodities Group - South Africa
- Banpu Public Company Limited - Thailand
- VISA Power Limited - India
- Kobexindo Tractors - Indoneisa
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Altura Mining Limited, Indonesia
- Kartika Selabumi Mining - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Tata Chemicals Ltd - India
- Eastern Coal Council - USA
- SMG Consultants - Indonesia
- IEA Clean Coal Centre - UK
- AsiaOL BioFuels Corp., Philippines
|
| |
| |
|
