Unlocking the DIVINEGATE – getting into a jurisdiction clause | Case by Case (Ep. 8)
In the recent case of the DIVINEGATE, the English court was faced with a difficult jurisdictional question. The Claimant arrested a vessel in Gibralta... Read more
Innhwa Kwon at Baltic Arbitration Days
Kwon (panelist), “Third Party Funding”, Baltic Arbitration Days, 13.08.2021.
Counting the Consequentials – London Arbitration 13/21 | Case by Case (Ep. 5)
Parties routinely exclude “consequential losses” in their contractual agreements. But what is a consequential loss, and what is actually covered by a consequential loss exclusions?
Luke and Calum look at a recent Arbitration decision, London Arbitration 13/21, and explore the law on consequential losses.
Recapping Recaps – Interpreting inconsistencies between the “printed terms” and the “recap” | Case by Case (Ep. 4)
Anyone familiar with the world of shipping, commodities and international trade will be familiar with agreements where the key commercial terms are agreed in a “recap”, with full conditions to be incorporated by reference to a separate document (the “printed terms”).
But what happens when the terms in the Recap would give a different result – if read in isolation – to the terms in the printed terms? Should the parties try to read both together, to find a way of giving effect to both provisions – or should one set of terms prevail, at the expense of the other?
This was exactly the question before the Court in Septo Trading Inc v Tintrade Ltd  EWCA Civ 718, which Luke and Calum discuss in this podcast.
Superman Security or Clark Kent Counterparty-risk? The law on Alter Ego Attachments | Case by Case (Ep. 3)
In this week’s episode, Luke and Calum look to the US Courts and a recent decision on the law regarding “alter ego” attachments.
An “alter-ego” attachment is where a claimant attaches a vessel, or some other asset, owned by a person or corporation that is not, strictly speaking, the respondent to the proceedings on the basis that the person who owns the attached asset is an “alter ego” of the person who is the respondent in the underlying proceedings.
The position under US law is not straight-forward and while there is generally a right to ‘pierce the corporate veil’ in certain circumstances, different US Circuits apply different tests. Luke and Calum look at the tests, the indicating factors for an “alter ego” attachment, and discuss some real-life examples.
Permission to Appeal – No second bites at the cherry | Case by Case (Ep. 2)
Luke Zadkovich and Calum Cheyne discuss CVLC v Arab Maritime Petroleum Transport Company  EWHC 551 (Comm).
In this week’s case, Luke and Calum look at Cockerill J’s confirmation that once the Court has given permission to appeal under Section 69 Arbitration Act 1996 at a permission hearing, the question of whether or not leave to appeal ought to have been granted cannot then be re-opened as a defence in the substantive trial on the appealed issues.
The Judge’s reasoning was that the question of permission is a standalone issue, dealt with at the permission stage, which does not require re-visiting at the substantive hearing of the appeal. In this case, the Defendant sought to argue that the question on appeal was not a question that the Tribunal had answered in the arbitration – if that had been correct, it would not have satisfied Section 69(3)(b) Arbitration Act 1996, and the appeal should not have been allowed.
In this case, even though the Judge held that the question could not be re-opened, the Judge also found that even if it was re-considered, permission was in any event rightly granted.
The case also looks at the question of maritime security, and the question of whether there is an implied term in a guarantee that the guarantee itself is sufficient security and no further security can be sought by the beneficiary.
The conversation looks at maritime security instruments, Section 69 appeals and urgent maritime applications. In the conversation, Calum mentions an article by Clare Ambrose, Michael Collet QC and Karen Maxwell on emergency relief in maritime arbitrations. That article is available here: https://twentyessex.com/interim-and-emergency-relief-in-support-of-maritime-arbitration-under-english-law/.
Ondrej Cech Moderates YCAP Panel on UML Initiative
Cech (moderator), “UNCITRAL Model Law Initiative: Sharing Implementation Experience”, YCAP Panel Discussion, 20.05.2021.