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Friday, 22 August 14
ARBITRATION CLAUSE IN LOU HELD TO REPLACE CHARTERPARTY ARBITRATION CLAUSE
 KNOWLEDGE TO ELEVATE
The Claimants had claims for cargo damage against the vessel Owners arising under four bills of lading. The vessel was the subject of a chain of three charterparties. The head and sub-charter provided for London Arbitration (two arbitrators unless a sole could be agreed), and the LMAA Small Claims Procedure for claims under US$100,000. The sub-sub-charter provided for Singapore Arbitration.
Owners’ P&I Club provided an LOU to the Claimants as security for their claims. The LOU provided for London Arbitration before a three-man Tribunal, stating in part: “we confirm that the Ship Owners agree that the above mentioned claims shall be subject to London Arbitration … and English Law to apply … and for each party to nominate its own arbitrator and the two so appointed may appoint a third”.
The Claimants commenced arbitration under the terms of the LOU, and Owners challenged the Tribunal’s jurisdiction. Owners argued that the arbitration clause in the head charter was incorporated into the bills of lading and that this remained intact, despite the provisions of the LOU. This included the use of the Small Claims Procedure. Owners said that the appointed Tribunal had no jurisdiction over claims which would inevitably be less than US$100,000.
The Court held that the arbitration provision in the LOU replaced the charterparty arbitration clauses. The Claimants had validly commenced arbitration and the Tribunal as appointed had jurisdiction.
The key question was whether the parties had intended the provisions of the LOU to replace the original arbitration provisions wholesale, or merely to vary them in limited respects but leaving them in force. The arbitration clause in the LOU was comprehensive and able to operate as a free standing agreement. Further, there was no reason in principle why the terms of the LOU should not operate as a complete replacement.
The Court identified “compelling reasons” supporting the parties’ intention that this should be the outcome. A particular focus was placed on certainty. Having an arbitration agreement located partly in an LOU and partly in a charterparty would be a “recipe for confusion”, especially where, as here, there was scope for disagreement as to which of the charterparty arbitration clauses would apply. The possibility of such disagreement was removed by the LOU.
This case highlights the importance of considering carefully whether the provisions of any binding documents, such as LOUs, will vary or even supersede the provisions of existing contracts. The court will consider all such documents in context, and in the light of common business sense. The parties’ intentions do not have to be explicitly set down in documents or correspondence for the court to make findings, in light of all the circumstances, as to what those intentions were.
Finally, it is interesting to note the Court’s comments, at the beginning of the judgment that it is difficult to see that the parties’ costs were well spent, where the amounts in dispute were modest and there was no dispute that the claims ought to be arbitrated. The Court noted that, in fact, Owners appeared to be seeking to knock out the claims on a technical point, because any new arbitration would be time barred, albeit it accepted that this was something which Owners were entitled to do.
Source: Reed Smith
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Wednesday, 21 June 23
CHINA'S MAY COAL IMPORTS FROM AUSTRALIA RECOVER TO PRE-BAN LEVELS - REUTERS
Australian coal sales to China increased in May, as trade resumed between them even as overall coal demand weakened against an uncertain macroecono ...
Monday, 19 June 23
DROUGHT-DEPLETED HYDROPOWER DRIVES CHINA TO TURN TO COAL - REUTERS
China has leant hard on coal-fired power plants as well as wind and solar generators to make up for a shortfall in hydroelectric generation as a re ...
Monday, 19 June 23
CHINA COAL OUTPUT UP 4.2 PCT IN MAY - XINHUA
China’s raw coal output posted steady growth in May, official data showed.
The country produced 390 million tonnes of raw coal ...
Wednesday, 24 May 23
AMMONIA-FUELLED BULK CARRIERS WITHIN FIVE YEARS - BALTIC EXCHANGE
Within five years, ships powered by clean ammonia could be a feature on the iron ore trade routes between West Australia and East Asia.
A study ...
Tuesday, 23 May 23
CHINA'S APRIL COAL OUTPUT LEAPS 11% ON YEAR, BUT DEMAND DOWNTURN LOOMS - REUTERS
China’s daily coal output in April jumped 11% from the same month a year earlier, boosted by Beijing’s order to increase supply to ensu ...
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- Petron Corporation, Philippines
- Marubeni Corporation - India
- Africa Commodities Group - South Africa
- Economic Council, Georgia
- Interocean Group of Companies - India
- Orica Mining Services - Indonesia
- Planning Commission, India
- Global Green Power PLC Corporation, Philippines
- Romanian Commodities Exchange
- Aboitiz Power Corporation - Philippines
- Indian Energy Exchange, India
- Vijayanagar Sugar Pvt Ltd - India
- Mercuria Energy - Indonesia
- Standard Chartered Bank - UAE
- Electricity Generating Authority of Thailand
- Ambuja Cements Ltd - India
- Karaikal Port Pvt Ltd - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- PTC India Limited - India
- Parliament of New Zealand
- Siam City Cement PLC, Thailand
- Australian Coal Association
- Altura Mining Limited, Indonesia
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Gujarat Mineral Development Corp Ltd - India
- Bukit Asam (Persero) Tbk - Indonesia
- Meralco Power Generation, Philippines
- London Commodity Brokers - England
- Central Java Power - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Uttam Galva Steels Limited - India
- Global Business Power Corporation, Philippines
- Rashtriya Ispat Nigam Limited - India
- Bhushan Steel Limited - India
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- Meenaskhi Energy Private Limited - India
- Videocon Industries ltd - India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Salva Resources Pvt Ltd - India
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- Bukit Makmur.PT - Indonesia
- Tamil Nadu electricity Board
- CIMB Investment Bank - Malaysia
- SMG Consultants - Indonesia
- New Zealand Coal & Carbon
- Rio Tinto Coal - Australia
- Global Coal Blending Company Limited - Australia
- Simpson Spence & Young - Indonesia
- Merrill Lynch Commodities Europe
- Maheswari Brothers Coal Limited - India
- IEA Clean Coal Centre - UK
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- Tata Chemicals Ltd - India
- Minerals Council of Australia
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- Sindya Power Generating Company Private Ltd
- Borneo Indobara - Indonesia
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- Mercator Lines Limited - India
- Jindal Steel & Power Ltd - India
- Thiess Contractors Indonesia
- Orica Australia Pty. Ltd.
- Bhoruka Overseas - Indonesia
- CNBM International Corporation - China
- Metalloyd Limited - United Kingdom
- Trasteel International SA, Italy
- Sojitz Corporation - Japan
- Sical Logistics Limited - India
- Sree Jayajothi Cements Limited - India
- Gujarat Electricity Regulatory Commission - India
- Cigading International Bulk Terminal - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Ministry of Mines - Canada
- PNOC Exploration Corporation - Philippines
- Oldendorff Carriers - Singapore
- Port Waratah Coal Services - Australia
- Vizag Seaport Private Limited - India
- Kaltim Prima Coal - Indonesia
- Cement Manufacturers Association - India
- Binh Thuan Hamico - Vietnam
- Lanco Infratech Ltd - India
- Kobexindo Tractors - Indoneisa
- Singapore Mercantile Exchange
- Kapuas Tunggal Persada - Indonesia
- Eastern Energy - Thailand
- Chamber of Mines of South Africa
- Directorate Of Revenue Intelligence - India
- Eastern Coal Council - USA
- GMR Energy Limited - India
- Energy Link Ltd, New Zealand
- OPG Power Generation Pvt Ltd - India
- Central Electricity Authority - India
- Medco Energi Mining Internasional
- Posco Energy - South Korea
- Pendopo Energi Batubara - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Intertek Mineral Services - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Maharashtra Electricity Regulatory Commission - India
- Electricity Authority, New Zealand
- GN Power Mariveles Coal Plant, Philippines
- Xindia Steels Limited - India
- Wood Mackenzie - Singapore
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Malabar Cements Ltd - India
- Bharathi Cement Corporation - India
- Attock Cement Pakistan Limited
- Renaissance Capital - South Africa
- GAC Shipping (India) Pvt Ltd
- Pipit Mutiara Jaya. PT, Indonesia
- Holcim Trading Pte Ltd - Singapore
- Sinarmas Energy and Mining - Indonesia
- Georgia Ports Authority, United States
- PetroVietnam Power Coal Import and Supply Company
- International Coal Ventures Pvt Ltd - India
- Riau Bara Harum - Indonesia
- Bayan Resources Tbk. - Indonesia
- GVK Power & Infra Limited - India
- Krishnapatnam Port Company Ltd. - India
- Larsen & Toubro Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- Neyveli Lignite Corporation Ltd, - India
- SN Aboitiz Power Inc, Philippines
- The State Trading Corporation of India Ltd
- SMC Global Power, Philippines
- South Luzon Thermal Energy Corporation
- Coal and Oil Company - UAE
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Latin American Coal - Colombia
- Independent Power Producers Association of India
- Grasim Industreis Ltd - India
- The University of Queensland
- Baramulti Group, Indonesia
- Bahari Cakrawala Sebuku - Indonesia
- Ministry of Finance - Indonesia
- Toyota Tsusho Corporation, Japan
- TNB Fuel Sdn Bhd - Malaysia
- Essar Steel Hazira Ltd - India
- Mintek Dendrill Indonesia
- AsiaOL BioFuels Corp., Philippines
- Bangladesh Power Developement Board
- Energy Development Corp, Philippines
- MS Steel International - UAE
- Power Finance Corporation Ltd., India
- Gujarat Sidhee Cement - India
- Goldman Sachs - Singapore
- Antam Resourcindo - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Timah Investasi Mineral - Indoneisa
- Heidelberg Cement - Germany
- Sarangani Energy Corporation, Philippines
- White Energy Company Limited
- LBH Netherlands Bv - Netherlands
- Vedanta Resources Plc - India
- Savvy Resources Ltd - HongKong
- Anglo American - United Kingdom
- ASAPP Information Group - India
- Commonwealth Bank - Australia
- Aditya Birla Group - India
- Banpu Public Company Limited - Thailand
- Mjunction Services Limited - India
- Indika Energy - Indonesia
- IHS Mccloskey Coal Group - USA
- Indogreen Group - Indonesia
- Barasentosa Lestari - Indonesia
- Indonesian Coal Mining Association
- Kepco SPC Power Corporation, Philippines
- Parry Sugars Refinery, India
- Bhatia International Limited - India
- VISA Power Limited - India
- Agrawal Coal Company - India
- Wilmar Investment Holdings
- Siam City Cement - Thailand
- Coalindo Energy - Indonesia
- Straits Asia Resources Limited - Singapore
- Sakthi Sugars Limited - India
- Semirara Mining and Power Corporation, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Edison Trading Spa - Italy
- Price Waterhouse Coopers - Russia
- McConnell Dowell - Australia
- Ind-Barath Power Infra Limited - India
- Billiton Holdings Pty Ltd - Australia
- Bukit Baiduri Energy - Indonesia
- Makarim & Taira - Indonesia
- Karbindo Abesyapradhi - Indoneisa
- Leighton Contractors Pty Ltd - Australia
- Kalimantan Lumbung Energi - Indonesia
- Australian Commodity Traders Exchange
- PowerSource Philippines DevCo
- Chettinad Cement Corporation Ltd - India
- Kideco Jaya Agung - Indonesia
- Formosa Plastics Group - Taiwan
- Indian Oil Corporation Limited
- Bulk Trading Sa - Switzerland
- European Bulk Services B.V. - Netherlands
- Indo Tambangraya Megah - Indonesia
- TeaM Sual Corporation - Philippines
- Dalmia Cement Bharat India
- Globalindo Alam Lestari - Indonesia
- Deloitte Consulting - India
- Madhucon Powers Ltd - India
- Samtan Co., Ltd - South Korea
- Jaiprakash Power Ventures ltd
- Therma Luzon, Inc, Philippines
- Ministry of Transport, Egypt
- Carbofer General Trading SA - India
- Iligan Light & Power Inc, Philippines
- Asmin Koalindo Tuhup - Indonesia
- The Treasury - Australian Government
- Kumho Petrochemical, South Korea
- Alfred C Toepfer International GmbH - Germany
- India Bulls Power Limited - India
- San Jose City I Power Corp, Philippines
- Semirara Mining Corp, Philippines
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