• Arresting Vessels for Security Early Contract and Charterparty Review (Part 9 of Economic Crisis Series)

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    How to deal with an economic crisis?  A guide for international businesses.  Today’s talk:  Vessel arrests.   Part 9 of our series on the tools and strategies that international companies can use to protect and mitigate their positions in the current climate.   One sector our firm focuses on is the international trade and shipping sector.  If you have a claim or lien against a ship or its owner, then you need to know about vessel arrests.  Luke Zadkovich explains key factors involved.   In this particular talk, we approach the topic primarily from the perspective of the arresting party.  Typically that will be for charterers, cargo owners or third party interests (bunker suppliers, ports and terminals, crew, agents, service companies, and provision suppliers), although it could be shipowners that have chartered in tonnage to perform TBN business and are looking to the head owners for recovery.   We also have extensive experience acting for shipowners and their P&I Clubs in defending vessel arrests.  Our vast experience arresting ships certainly comes in useful when defending them.   All participants in the maritime industry will gain from a refresher on ship arrests in the current climate. All participants in the maritime industry will gain from a refresher on ship arrests in this crisis.   For further details, please contact Luke Zadkovich.
  • Provisional Relief in Aid of Arbitration Early Contract and Charterparty Review (Part 8 of Economic Crisis Series)

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    Arbitral interim measures   Part 8 of our series on the tools and strategies that international businesses can take to protect their positions in an economic crisis.   The New York CPLR (Civil Practice Law and Rules) provide for a host of interim measures to secure a party’s position at the outset of arbitration. This can take different shapes, but New York has what should be considered a creditor-friendly scheme in place.   Edward Floyd, Partner at ZFZ, shares his experience with aiding a creditor in a tough market. New York’s procedure is using a fairly low burden, requiring only a showing that an eventual award might be rendered ineffectual without provisional relief.    This is a valuable tool to keep in mind, particularly when you cannot use Rule B – say if the claim is non-maritime, such as for a commercial product/commodity sales contract, and it contains an arbitration clause.    Here at ZFZ, we are always looking to find creative solutions for our client’s problems.  We combine maritime and non-maritime proceedings for optimal outcomes. Be in touch and we are happy to discuss. For further information please contact Ed Floyd or anyone from the ZFZ team to discuss this, or any of the other topics in the video series.
  • Bunker Arrest – post Res Cogitans Early Contract and Charterparty Review (Part 7 of Economic Crisis Series)

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    Bunker arrests   This is Part 7 of our series on how to deal with an economic crisis – a guide for international businesses.   In 2016, the Supreme Court handed down its judgment in the Res Cogitans, the leading case arising out of the OW Bunkers insolvency. That case had a profound effect on the shipping market, with many ship operators left with debts to the physical suppliers of the bunkers, and to OW Bunkers’ liquidators.    We are now entering the most serious economic downturn since that judgment. In that economic climate, it is fair to expect parties seeking security by ever more creative means, including an uptick in bunker arrests against time charterers. In the spirit of being prepared, we take a look at what the Res Cogitans means for bunker arrests.    In particular, in the Res Cogitans the Supreme Court held that where bunker supply agreements are made on credit terms, with a retention of title clause pending payment, title to the bunkers remained in the bunker supplier. We look at whether charterers can rely on that judgment to defeat the attachment – after all, if charterers don’t actually own the bunkers, how can the arrest succeed? Contact Calum, or your normal ZFZ, for more.

  • Pre-action discovery – s. 1782 and others Early Contract and Charterparty Review (Part 6 of Economic Crisis Series)

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    Pre-action discovery   This is Part 6 of our series on the tools and strategies that international companies can use to protect their positions in the current economic situation.    Eva-Maria Mayer explains a useful tool to gain access to the often much broader reel of discoverable evidence under the U.S. Federal Rules of Civil Procedure while litigating abroad.    28 U.S.C. 1782 provides parties in a foreign proceeding with a tool to gain access to the U.S. discovery rules. Such an application can be brought by a party to a foreign litigation against another party in such litigation or against a third-party in the district of the federal court where the application is being brought.    The significant aspect of such an application is that it is not required that the discovery sought be admissible in the foreign tribunal – such determination is left to be made by such a foreign tribunal. This leads to parties gaining access to a much vaster array of discoverable materials than would often be the case in the jurisdiction where the foreign proceedings are taking place.   Keeping in mind certain restrictions, and of course, meeting all required elements this can be a very useful tool in the age over globalization and ever growing international commercial agreements and disputes. For further information please contact Eva-Maria Mayer or anyone from the ZFZ team to discuss this, or any of the other topics in the video series.

  • Shipowner’s Liens over Cargo Early Contract and Charterparty Review (Part 5 of Economic Crisis Series)

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    Shipowner’s lien over cargo.   Part 5 of our series on how to deal with an economic crisis – a guide for international businesses.   Luke Zadkovich unpacks the fundamental differences between the US and English approaches to shipowner’s liens over cargo.  This has been a hot topic for a few years now, most recently with the English liquidation of British Steel in 2019 and prior to that, the collapse Hanjin Shipping and others.   One of the unfortunate business realities of an economic crisis is that it typically results in more bankruptcies and insolvencies.  Edward Floyd discusses bankruptcy proceedings in detail later in this series.   In this talk, we assess what a shipowner can do to secure its payments under a charterparty or bill of lading through the exercise of its cargo lien rights and other measures.  Charterers/cargo interests will also be interested to navigate through these tricky scenarios.   ps. look out for the Athos 1 unsafe berth analogy at 17:00mins – especially given the US Supreme Court’s decision came out yesterday.  If you have any further questions on this topic, please contact Luke Zadkovich.
  • Demanding Assurances of Performance Early Contract and Charterparty Review (Part 4 of Economic Crisis Series)

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    Obtaining performance assurances in contracts.   This is Part 4 of our series on the tools and strategies that international companies can use to protect their positions in the current economic situation.   Luke Zadkovich explains a useful tool to flush out whether a contractual counterparty is in a position to up hold their end of the bargain. The United States UCC procedure of ‘demanding adequate assurances of performance’ is particularly relevant in economic uncertainty.   The underlying principles of this approach go beyond US contract law and can inform strategies in dealing with counterparties internationally and in contracts subject to other governing laws. Early dialogue is recommended. As is assessing counterparty risk closely and using information gathered to manage that risk.   This talk addresses strategies to employ during contract performance. In a later talk in this series, we will look at what you can do pre-contract to limit your exposure in this current market. We will also assess more serious action to obtain security and protect assets, where dialogue does not work or is inadvisable, in other upcoming talks. For further details, please contact Luke Zadkovich, or your usual contact at ZFZ.